Orwig v. Chapdelane et al

Filing 5

ORDER TO FILE AN AMENDED PRISONER COMPLAINT by Magistrate Judge Gordon P. Gallagher on 4/8/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00781-GPG
CHRISTOPHER M. ORWIG,
Plaintiff,
v.
WARDEN CHAPDELANE, Sterling Corr. Facility, Official and Individual Capacities,
CAPTAIN FELICIA BROOKS, Sterling Corr. Facility Kitchen Manager, Official and
Individual Capacities,
LT. STEVEN BADE, Sterling Corr. Facility Hearings Disciplinary Officer, Official
and Individual Capacities, and
OFFICE CLARK, Sterling Corr. Facility Correctional Officer, Official and Individual
Capacities,
Defendants.

ORDER TO FILE AN AMENDED PRISONER COMPLAINT

Plaintiff Christopher M. Orwig is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Sterling Correctional Facility in Sterling,
Colorado. Plaintiff initiated this action by filing pro se a Prisoner Complaint alleging
deprivations of his constitutional rights pursuant to 28 U.S.C. § 1343 and 42 U.S.C.
§ 1983 and a Prisoner=s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
' 1915. Plaintiff has been granted leave to proceed pursuant to 28 U.S.C. ' 1915.

Plaintiff asserts three claims. In the first claim, Plaintiff asserts that his First,
Fourteenth, and RLUIPA rights to freely exercise his religious beliefs and practices have
been violated. In Claim Two, Plaintiff asserts that his First Amendment right to be free
from retaliation for attempting to practice and exercise his beliefs was violated. In claim
Three, Plaintiff asserts that Lt. Wagner told him the doctrine of his religion was
1

unacceptable and he was welcome to attend the Christian services provided at the
Sterling Correctional Facility. Plaintiff seeks money damages and injunctive relief.
The Court must construe the Complaint liberally because Plaintiff 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 act as an
advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons discussed
below, the Court will direct Plaintiff to file an amended prisoner complaint.
First, Plaintiff must assert personal participation by a named defendant in the
alleged constitutional violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th
Cir. 1976). Plaintiff does not name Lt. Wagner as a defendant in the caption of the
Complaint or in the Parties section of the Complaint form. If Plaintiff intends to proceed
with claims against Lt. Wagner he must name him as a defendant in the caption of the
Complaint and in the Parties section of the form.
Second, supervisors, such as Warden Chapdelane, can only be held liable for their
own misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A supervisor cannot
incur liability under ' 1983 for his mere knowledge of a subordinate=s wrongdoing. Id.;
see also Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (A[Section] 1983 does
not recognize a concept of strict supervisor liability; the defendant=s role must be more
than one of abstract authority over individuals who actually committed a constitutional
violation.@).
Furthermore,
when a plaintiff sues an official under Bivens or ' 1983 for conduct Aarising
from his or her superintendent responsibilities,@ the plaintiff must plausibly
plead and eventually prove not only that the official=s subordinates violated
the Constitution, but that the official by virtue of his own conduct and state of
mind did so as well.
2

Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at
677). Therefore, in order to succeed in a ' 1983 suit against a government official for
conduct that arises out of his or her supervisory responsibilities, a plaintiff must allege and
demonstrate that: A(1) the defendant promulgated, created, implemented or possessed
responsibility for the continued operation of a policy that (2) caused the complained of
constitutional harm, and (3) acted with the state of mind required to establish the alleged
constitutional deprivation.@ Id. at 1199.
The Court also observes that Adefendant-supervisors may be liable under ' 1983
where an >affirmative= link exists between the unconstitutional acts by their subordinates
and their >adoption of any plan or policy. . .Bexpress or otherwiseBshowing their
authorization or approval of such >misconduct.= @ See Dodds, 614 F.3d at 1200-1201
(quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)). A supervisor defendant may not be
held liable for the unconstitutional conduct of his subordinates on a theory of respondeat
superior, see Iqbal, 556 U.S. at 676, because A' 1983 does not recognize a concept of
strict supervisor liability; the defendant=s role must be more than one of abstract authority
over individuals who actually committed a constitutional violation,@ Fogarty, 523 F.3d at
1162. A public official is liable only for his own misconduct, Iqbal, 556 U.S. at 676, and
Plaintiff must plead with plausibility that not only an official=s subordinates violated the
constitution but the named official acted by Avirtue of his own conduct and state of mind.@
Dodds, 614 F.3d at 1198 (citing Iqbal, 556 U.S. at 677). To establish a claim under
' 1983, a plaintiff must show more than Aa supervisor=s mere knowledge of his
subordinate=s conduct.@ See Schneider v. City of Grand Junction Police Dep=t, 717 F.3d
760, 767 (10th Cir. 2013) (quoting Iqbal, 556 U.S. at 677).
3

Plaintiff also cannot maintain claims against prison officials or administrators on
the basis that they denied his grievances. The Adenial of a grievance, by itself without
any connection to the violation of constitutional rights alleged by plaintiff, does not
establish personal participation under ' 1983.@ Gallagher v. Shelton, 587 F.3d 1063,
1069 (10th Cir. 2009); see also Whitington v. Ortiz, No. 07-1425, 307 F. App=x 179, 193
(10th Cir. Jan. 13, 2009) (unpublished) (stating that Athe denial of the grievances alone is
insufficient to establish personal participation in the alleged constitutional violations.@)
(internal quotation marks and citation omitted); Davis v. Ark. Valley Corr. Facility, No.
02-1486, 99 F. App=x 838, 843 (10th Cir. May 20, 2004) (unpublished) (sending
Acorrespondence [to high-ranking prison official] outlining [a] complaint . . . without more,
does not sufficiently implicate the [supervisory official] under ' 1983@).
Third, to establish personal participation, Plaintiff must show how each named
individual caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S.
159, 166 (1985). There must be an affirmative link between the alleged constitutional
violation and each defendant=s participation, control or direction, or failure to supervise.
See Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993). Plaintiff must
explain what each defendant did to him, when the defendant did it, how the defendant=s
action harmed him, and what specific legal right he believes the defendant violated.
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Accordingly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff file an
Amended Complaint that complies with this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility=s legal assistant),
4

along with the applicable instructions, at www.cod.uscourts.gov. Plaintiff must use a
Court-approved form to file the amended prisoner complaint. It is
FURTHER ORDERED that if Plaintiff fails within the time allowed to file an
amended prisoner complaint that complies with this Order the Court will address the
claims as stated in the original Complaint pursuant to the federal rules of civil procedure
and dismiss improper and insufficient claims accordingly.
DATED at Denver, Colorado, this 8th day of

April , 2016.

BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

5