Dalrymple v. Corrections Corp. of America et al
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 4/20/16. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00875-GPG
CORRECTIONS CORP. OF AMERICA,
KRISTOPHER KLINE, Warden, KCCC,
LOIS A. ROSA, Assistant Warden, KCCC,
TAYLOR, Unit Manager, KCCC,
SWARTZ, Property Officer, KCCC,
IDAHO DEPT. OF CORRECTIONS,
HIGGINS, Deputy Warden,
BLADES, Warden, and
KEVIN KEMP, Director of Idaho Prisons,
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Plaintiff David Dalrymple is in the custody of the Idaho Department of Corrections
and currently is incarcerated at the Idaho State Correctional Institution Unit 13 in Boise,
Idaho. See www.idoc.idaho.gov/content/prisons/offender_search. Plaintiff initiated
this action by filing pro se a Prisoner Complaint pursuant to 42 U.S.C. ' 1983 and a
Prisoner=s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. ' 1915. The
Court has granted Plaintiff=s ' 1915 Motion.
The Court must construe Plaintiff=s Complaint liberally because he 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 cannot act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, Plaintiff will be directed to file an Amended Complaint.
To state a claim in federal court Plaintiff must explain (1) what a defendant did to
him; (2) when the defendant did it; (3) how the defendant=s action harmed him; and (4)
what specific legal right the defendant violated. Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
Plaintiff also is required to assert personal participation by each properly named
defendant in the alleged constitutional violation. See Bennett v. Passic, 545 F.2d 1260,
1262-63 (10th Cir. 1976). To establish personal participation, Plaintiff must show in the
Cause of Action section of the complaint form 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).
A defendant may not be held liable for the unconstitutional conduct of his or her
subordinates on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009). 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.
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.
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@).
To the extent Plaintiff is asserting claims against Defendant s Idaho Department of
Corrections and Kevin Kemp, the Director of Idaho Prisons, this Court lacks proper venue
to review the claims. Under 28 U.S.C. ' 1391, the statute that provides for venue,
paragraph (b) states that:
A civil action wherein jurisdiction is not founded solely on diversity of
citizenship may, except as otherwise provided by law, be brought only in (1)
a judicial district where any defendant resides, if all defendants reside in the
same State, (2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of property
that is the subject of the action is situated, or (3) a judicial district in which
any defendant is subject to personal jurisdiction at the time the action is
commenced, if there is no district in which the action may otherwise be
Therefore, such claims are not properly before this Court and are subject to sua
sponte dismissal. See Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006).
Regarding Plaintiff’s loss of property claim, the United States Constitution
guarantees due process when a person is deprived of life, liberty, or property. See
Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). However, “neither negligent
nor intentional deprivations of property under color of state law that are random and
unauthorized give rise to a § 1983 claim where the plaintiff has an adequate state remedy
. . . .” Gillihan v. Shillinger, 872 F.2d 935, 939 (10th Cir. 1989), overruled on other
grounds by Clark v. Wilson, 625 F.3d 686, 691 (10th Cir. 2010); see also Hudson v.
Palmer, 468 U.S. 517, 533 (1984) (finding that an unauthorized intentional deprivation of
property does not violate due process if an adequate postdeprivation remedy for the loss
A prison grievance procedure is an adequate post deprivation remedy if the
grievance procedure provides a meaningful remedy. See Hudson, 468 at 536 & n.15;
Williams v. Morris, 697 F.2d 1349, 1351 (10th Cir. 1982). If an administrative remedy
exists, it has a “presumption of adequate due process” that “may stave off a facial attack.”
Freeman v. Dep't of Corrs., 949 F.2d 360, 362 (10th Cir. 1991). In order to overcome the
presumption of adequacy, the complaint must state “specific facts” showing that the
remedy was “unresponsive or inadequate.” Id.; see also Durre v. Dempsey, 869 F.2d
543, 548 (10th Cir. 1989) (affirming dismissal of plaintiff's due process deprivation of
property claim, stating that “[i]n order to state a claim under § 1983, a complaint must
allege facts sufficient to show deprivation, in this case the lack of an adequate state
remedy”). Plaintiff does not allege facts to show that the DOC grievance procedure was
unresponsive or inadequate.
Moreover, Plaintiff also has an adequate remedy available in state court under
state law. See, e.g., Cooper v. Belcher, 2010 WL 3359709, at *15 (D. Colo. Aug. 25,
2010) (unpublished) (noting that “[a]dequate state remedies are not limited to the filing of
grievances, but include filing complaints in state court.”) (internal citations omitted).
Also, Plaintiff must plead he actually was impeded in his ability to conduct a
particular case to state a violation of his right to access the courts. See Casey v. Lewis,
518 U.S. 343 (1996). The right of access to the courts extends only as far as protecting
an inmate’s ability to prepare initial pleadings in a civil rights action regarding his current
confinement or in an application for a writ of habeas corpus. See Wolff v. McDonnell,
418 U.S. 539, 576 (1974); Carper v. DeLand, 54 F.3d 613, 617 (10th Cir. 1995). An
inmate must satisfy the standing requirement of “actual injury” by showing that the denial
of legal resources hindered his efforts to pursue a nonfrivolous claim. Casey, 518 U.S.
In Casey, the Supreme Court cites two examples of when an inmate’s efforts to
pursue a legal claim may be hindered. First, an inmate’s efforts may be hindered when a
complaint prepared by an inmate is dismissed for failure to satisfy a technical requirement
due to deficiencies in a prison’s legal assistance facilities. Casey, 518 U.S. at 351.
Another example of hindering an inmate’s efforts would be when an inmate is so stymied
by inadequacies of the law library that he is unable to file a complaint. Id.
Accordingly, it is
ORDERED that within thirty days from the date of this Order, Plaintiff shall 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),
along with the applicable instructions, at www.cod.uscourts.gov, to be used in filing the
Amended Complaint. It is
FURTHER ORDERED that if Plaintiff fails to file an Amended Complaint that
complies with this Order, within the time allowed, 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. It is
FURTHER ORDERED that the Clerk of the Court shall revise the address on the
Docket in this case with the address Plaintiff provided on Page Ten of the Prisoner
Complaint, ECF No. 1 at 10: David Dalrymple, #74871, ISCI, P.O. Box 14, Boise, ID
DATED April 20, 2016, at Denver, Colorado.
BY THE COURT:
Gordon P. Gallagher
United States Magistrate Judge
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