Thomas v. Olson et al

Filing 7

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 4/5/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00696-GPG
DEMETRIUS THOMAS,
Plaintiff,
v.
INTERNAL CLASSIFICATION COMMITTEE CHAIRMAN,
CUSTODY CONTROL SUPERVISOR,
FACILITY INTELLIGENCE OFFICER,
CASE MANAGER OLIVETT,
TRAVIS TRANI,
EXECUTIVE DIRECTOR CDOC,
OFFICER GRANNIS,
STATE OF COLORADO/CDOC,
MATTHEW DOMINGUEZ,
SEVERAL UNKOWN OFFICERS,
INSPECTOR GENERAL CDOC,
SHERADIN FROM INSPECTOR GENERAL’S OFFICE, and
CORRECTIONS HEALTHCARE MANAGEMENT,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Demetrius Thomas, is a prisoner in the custody of the Colorado
Department of Corrections at the Colorado State Penitentiary in Cañon City, Colorado.
Mr. Thomas has filed pro se a Prisoner Complaint (ECF No. 5) pursuant to 42 U.S.C. §
1983 claiming his constitutional rights have been violated. He seeks damages and
various other forms of relief including placement in protective custody, an order to stop
retaliating against him, an order to stop interfering with mail to and from his family, an
order to stop putting poison in his food, an opportunity to participate in rehabilitative

programming, immediate release on special needs parole or other early release, and
criminal charges against Defendant Matthew Dominguez.
The court must construe the Prisoner Complaint liberally because Mr. Thomas is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the court should not be
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Mr. Thomas will be
ordered to file an amended complaint if he wishes to pursue his claims in this action.
Mr. Thomas alleges generally that corrupt correctional officers have placed a
contract on his life and the lives of his family members and are retaliating against him for
asserting his right to be free from cruel and unusual punishment. He contends more
specifically that correctional officers have interfered with his personal mail to and from his
family, poisoned his food, denied him placement in protective custody, denied him
adequate medical treatment, denied him opportunities for rehabilitative programming and
early release, and are responsible for his mother’s death because a correctional officer
provided his mother’s address to another inmate who had Mr. Thomas’s mother
murdered. Mr. Thomas specifically asserts three claims for relief, although the first two
claims have multiple subparts, alleging he has been subjected to cruel and unusual
punishment and retaliation for exercising his constitutional rights and denied due process
and equal protection.
The Prisoner Complaint is deficient because Mr. Thomas fails to allege specific
facts in support of his claims against each Defendant that demonstrate he is entitled to
relief. Vague and conclusory allegations that his federal constitutional rights have been
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violated do not entitle a pro se pleader to a day in court regardless of how liberally the
court construes such pleadings. See Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D.
Colo. 1991), aff’d, 961 F.2d 916 (10th Cir. 1992). Furthermore, the general rule that pro
se pleadings must be construed liberally has limits and “the court cannot take on the
responsibility of serving as the litigant’s attorney in constructing arguments and searching
the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.
2005). Thus, “in analyzing the sufficiency of the plaintiff’s complaint, the court need
accept as true only the plaintiff’s well-pleaded factual contentions, not his conclusory
allegations.” Hall, 935 F.2d at 1110. Neither the court nor Defendants are required to
guess in order to determine the specific factual allegations that are being asserted in
support of each claim.
In order to state a cognizable claim in federal court Mr. Thomas must identify the
specific factual allegations that support each claim, against which Defendant or
Defendants he is asserting each claim, and what each Defendant did that allegedly
violated his rights. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007) (noting that, to state a claim in federal court, “a complaint must explain
what each defendant did to him or her; when the defendant did it; how the defendant’s
action harmed him or her; and, what specific legal right the plaintiff believes the defendant
violated”). “The elements necessary to establish a § 1983 . . . violation will vary with the
constitutional provision at issue.” Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013)
(internal quotation marks omitted). Furthermore,
[b]ecause § 1983 [is a] vehicle[] for imposing personal
liability on government officials, we have stressed the need
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for careful attention to particulars, especially in lawsuits
involving multiple defendants. It is particularly important that
plaintiffs make clear exactly who is alleged to have done what
to whom, . . . as distinguished from collective allegations.
When various officials have taken different actions with
respect to a plaintiff, the plaintiff’s facile, passive-voice
showing that his rights “were violated” will not suffice.
Likewise insufficient is a plaintiff’s more active-voice yet
undifferentiated contention that “defendants” infringed his
rights.
Id. at 1225-26 (internal citations and quotation marks omitted).
Section 1983 “provides a federal cause of action against any person who, acting
under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526
U.S. 286, 290 (1999). Thus, allegations of “personal participation in the specific
constitutional violation complained of [are] essential.” Henry v. Storey, 658 F.3d 1235,
1241 (10th Cir. 2011); see also Foote v. Spiegel, 118 F.3d 1416, 1423 (10th Cir. 1997)
(“[i]ndividual liability . . . must be based on personal involvement in the alleged
constitutional violation.”). To the extent Mr. Thomas is asserting a § 1983 claim against
Corrections Healthcare Management, he also must allege specific facts that demonstrate
he suffered an injury caused by an official policy or custom. See Dubbs v. Head Start,
Inc., 336 F.3d 1194, 1216 (10th Cir. 2003) (holding that traditional municipal liability
principles apply to claims brought pursuant to 42 U.S.C. § 1983 against private
corporations); Smedley v. Corrections Corp. of America, 175 F. App’x 943, 946 (10th Cir.
2005) (“in order to hold CCA liable for the alleged tortious acts of its agents, [Plaintiff]
must show that CCA directly caused the constitutional violation by instituting an official
policy of some nature that was the direct cause or moving force behind the constitutional
violations”) (internal citation and quotation marks omitted).
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In order to state an arguable equal protection claim Mr. Thomas must allege facts
that demonstrate he intentionally was treated differently than similarly situated inmates.
See Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996). “Equal protection of the
laws doesn’t guarantee equal results for all.” SECSYS, LLC v. Vigil, 666 F.3d 678, 684
(10th Cir. 2012) (internal quotation marks omitted). Instead, the Equal Protection Clause
“seeks to ensure that any classifications the law makes are made without respect to
persons, that like cases are treated alike, that those who appear similarly situated are not
treated differently without, at the very least, a rational reason for the difference.” Id.
(internal quotation marks omitted).
With respect to the due process claim, Mr. Thomas must allege facts that
demonstrate he intentionally was deprived of a constitutionally protected interest in life,
liberty, or property. See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). The
existence of a constitutionally protected liberty interest depends upon the nature of the
interest asserted. See Sandin v. Conner, 515 U.S. 472, 480 (1995). A prisoner is not
entitled to any procedural protections in the absence of a grievous loss. See Morrissey
v. Brewer, 408 U.S. 471, 481 (1972). Generally, a liberty interest protected by due
process may arise under the United States Constitution or state law. See Sandin, 515
U.S. at 483-84. However, “the Constitution itself does not give rise to a liberty interest in
avoiding transfer to more adverse conditions of confinement.” Wilkinson v. Austin, 545
U.S. 209, 221 (2005). State law may create a liberty interest if it imposes an “atypical
and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 484. Relevant factors to be considered in determining whether
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certain conditions of confinement impose atypical and significant hardship in relation to
the ordinary incidents of prison life include whether the conditions relate to and further a
legitimate penological interest, whether the conditions are extreme, whether the
conditions increase the duration of confinement, and whether the conditions are
indeterminate. See DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1342 (10th Cir.
2007).
With respect to the retaliation claim, prison officials may not retaliate against an
inmate for exercising his constitutional rights. See Peterson v. Shanks , 149 F.3d 1140,
1144 (10th Cir. 1998). To state a retaliation claim Mr. Thomas must demonstrate: (1) he
was engaged in constitutionally protected activity, (2) Defendant’s actions caused him to
suffer an injury that would chill a person of ordinary firmness from continuing to engage in
that activity, and (3) Defendant’s adverse action was substantially motivated as a
response to Plaintiff’s constitutionally protected activity. See Allen v. Avance, 491 F.
App’x 1, 6 (10th Cir. 2012).
Finally, in order to state an arguable Eighth Amendment claim Mr. Thomas must
allege specific facts that demonstrate deliberate indifference to a substantial risk of
serious harm, see Farmer v. Brennan, 511 U.S. 825 (1994); Tafoya v. Salazar, 516 F.3d
912, 916 (10th Cir. 2008), or deliberate indifference to his serious medical needs, see
Estelle v. Gamble , 429 U.S. 97, 104-06 (1976). “A claim of deliberate indifference
includes both an objective and a subjective component.” Al-Turki v. Robinson, 762 F.3d
1188, 1192 (10th Cir. 2014). “A medical need is considered sufficiently serious to satisfy
the objective prong if the condition has been diagnosed by a physician as mandating
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treatment or is so obvious that even a lay person would easily recognize the necessity for
a doctor’s attention.” Id. at 1192-93 (internal quotation marks omitted). Under the
subjective prong, ‘a prison official may be held liable . . . only if he knows that inmates face
a substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).
For these reasons Mr. Thomas will be ordered to file an amended complaint that
clarifies the claims he is asserting. Pursuant to Rule 5.1(c) of the Local Rules of Practice
of the United States District Court for the District of Colorado – Civil, “[i]f not filed
electronically, an unrepresented prisoner or party shall use the procedures, forms, and
instructions posted on the court’s website.” Therefore, Mr. Thomas will be directed to file
his amended pleading on the court-approved Prisoner Complaint form. Mr. Thomas also
must provide an address where each Defendant may be served. Accordingly, it is
ORDERED that Mr. Thomas file, within thirty (30) days from the date of this
order, an amended complaint as directed in this order. It is
FURTHER ORDERED that Mr. Thomas shall obtain the court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility=s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Thomas fails to file an amended complaint that
complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED April 5, 2016, at Denver, Colorado.
BY THE COURT:
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Gordon P. Gallagher
United States Magistrate Judge

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