Petrie v. Terry et al

Filing 5

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 4/26/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00912-GPG
MICHAEL (NYKA) PETRIE,
Plaintiff,
v.
NURSE TERRY, CSP Medical,
NURSE III ASHLEY DAVIS, CSP Medical,
DR. DARREN L. LISH, MD-FAPA, Chief of Psychiatry, CDOC Headquarters,
LISA M. SANCHEZ, Constituent Services, Exec. Dir. Office CDOC,
LT. BRIAN MATTHEWS, CSP Housing, and
OFFICER BALLINGER, COI, CSP Housing,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Michael (Nyka) Petrie, is a prisoner in the custody of the Colorado
Department of Corrections at the Colorado State Penitentiary in Cañon City, Colorado.
Mr. Petrie has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983
claiming his constitutional rights have been violated. He seeks damages as relief.
The court must construe the Prisoner Complaint liberally because Mr. Petrie 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. Petrie will be ordered to
file an amended complaint if he wishes to pursue his claims in this action.
Mr. Petrie’s first two claims are repetitive Eighth Amendment claims. He alleges
in both claims that he was denied unspecified medical accommodations and supplies in

May 2015, apparently for three days, and that he was denied essential medications,
Wellbutrin and Gabapentin, for an unspecified period of time beginning on August 25,
2015. Mr. Petrie also asserts a third claim contending he was denied due process.
Although not entirely clear, Mr. Petrie apparently contends in the due process claim that
the medications he was denied beginning on August 25, 2015, improperly were withheld
as a sanction for failing to take his medications properly even though he was not charged
with a disciplinary offense under the Code of Penal Discipline.
The Prisoner Complaint is deficient because Mr. Petrie 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 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. Petrie must identify the
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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
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
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constitutional violation.”).
In order to state an arguable Eighth Amendment claim Mr. Petrie 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
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).
With respect to the due process claim, Mr. Petrie 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
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U.S. at 483-84.
For these reasons Mr. Petrie 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. Petrie will be directed to file
his amended pleading on the court-approved Prisoner Complaint form. Mr. Petrie also
must provide an address where each Defendant may be served. Accordingly, it is
ORDERED that Mr. Petrie 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. Petrie 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. Petrie 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 26, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge
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