Joseph v. Rios

Filing 41

ORDER STRIKING 20 Order Requiring Service and Special Report. Plaintiff may file a Second Amended Complaint on or beforeOctober 24th, 2018. Signed by Magistrate Judge Gary M. Purcell on 9/24/18. (rmc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
VICTOR EUGENE JOSEPH,

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Plaintiff,
HECTOR RIOS, JR.
Defendants.

CIV-18-22-G

ORDER
Plaintiff, a state prisoner appearing pro se and in forma pauperis, brings this
action under 42 U.S.C. § 1983, alleging violations of his federal rights while
incarcerated at Lawton Correctional Facility (“LCF”) in Lawton, Oklahoma. On
February 6, 2018, after reviewing Plaintiff’s initial Complaint pursuant to 28 U.S.C.
§§ 1915A and 1915(e)(2)(B), the Court afforded Plaintiff an opportunity to file an
Amended Complaint. Doc. No. 12. Complying with the Court’s Order, Plaintiff
filed an Amended Complaint on February 27, 2018. Doc. No. 19. On March 5,
2018, the Court entered an Order Requiring Service and Special Report. Doc. No.
20. However, after reviewing the docket in this matter, the Court finds there are
deficiencies in Plaintiff’s Amended Complaint that must be addressed before the
matter proceeds further.
Plaintiff is currently incarcerated at Lawton Correctional Facility (“LCF”)
located in Lawton, Oklahoma. In his Amended Complaint, Plaintiff purports to
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assert claims under the Fourteenth Amendment related to the receipt of “gang pay”
and the Eighth Amendment related to allegedly false write-ups and supporting
affidavits resulting in improper security classifications.

Doc. No. 19 (“Am.

Comp.”) at 4, 6-10. Within the allegations supporting his claims Plaintiff identifies
various LCF officials but names only Defendant Hector Rios, Jr., former warden at
LCF, as a Defendant. Id. at 4-6.
Personal participation is necessary for individual liability under Section 1983.
See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (“Personal
participation is an essential allegation in a § 1983 claim.”). Plaintiff does not
indicate that Defendant Rios personally participated in the events underlying his
Eighth Amendment claim. Am. Comp. at 4, 6-7. Further, with regard to his
Fourteenth Amendment claim, Defendant Rios’s actions appear to be limited to the
transfer of grievance requests. Id. at 6, 8-10. Thus, Plaintiff’s allegations against
Defendant Rios appear to be based not on Defendant Rios’s own actions but solely
on his supervisory status as Warden. Although a supervisor may be held liable if he
is affirmatively linked to the constitutional violation, “Section 1983 does not
authorize liability under a theory of respondeat superior.” Brown v. Montoya, 662
F.3d 1152, 1164 (10th Cir. 2011). As a result, government officials have no
vicarious liability in a § 1983 suit for the misconduct of their subordinates because

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“there is no concept of strict supervisor liability under section 1983.” Jenkins v.
Wood, 81 F.3d 988, 994 (10th Cir. 1996) (quotations omitted).
Instead, a supervisor is liable only if he is “personally involved in the
constitutional violation, and a sufficient causal connection [] exist[s] between the
supervisor and the constitutional violation.” Serna v. Colo. Dep’t of Corr., 455 F.3d
1146, 1151 (10th Cir. 2006) (quotations omitted); see also Schneider v. Grand
Junction Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013) (requiring a plaintiff to
show an “affirmative link” between the supervisor and the constitutional violation).
Thus, Plaintiff must base supervisory liability “‘upon active unconstitutional
behavior’ and ‘more than a mere right to control employees.’” Davis v. Okla. Cty.,
No. CIV–08–0550–HE, 2009 WL 2901180, at *4 (W.D. Okla. Sept. 3, 2009)
(quoting Serna, 455 F.3d at 1153).
Plaintiff’s allegations are wholly insufficient to establish supervisory liability
against Defendant Rios. Plaintiff fails to allege any affirmative link between
Defendant Rios and his allegations. He does not indicate Defendant Rios was even
aware of, much less involved with, issues surrounding Plaintiff’s write-ups. Am.
Comp. at 8-10. Moreover, with regard to his Fourteenth Amendment claim, Plaintiff
only alleges Defendant Rios transferred his grievance requests related to the receipt
of gang pay to third parties. Id. at 6-7. Even the denial of grievances does not
provide a sufficient basis for a constitutional violation claim. Larson v. Meek, 240
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F. App’x 777, 780 (10th Cir. 2007) (“[D]enial of [] grievances alone is insufficient
to establish personal participation in the alleged constitutional violations.”).
In order to set forth a viable claim, Plaintiff must clearly allege and name as
defendants the parties he contends personally violated his constitutional rights. See,
cf, Trujillo v. Williams, 465 F.3d 1210, 1227-28 (10th Cir. 2006) (upholding
dismissal of Section 1983 claims because the complaint did not indicate personal
participation by the named defendants). The Court will provide Plaintiff with an
additional opportunity to submit a Second Amended Complaint in order to cure the
identified deficiencies and adequately assert a constitutional claim. This Second
Amended Complaint will then supersede all previous Complaints.
Accordingly, it is Ordered that:
(1) the Order Requiring Service and Special Report (Doc. No. 20) is hereby
STRICKEN;
(2) Plaintiff may file a

Second Amended Complaint on or before

October 24th , 2018; and,
(3) The Clerk of the Court is directed to mail to the Plaintiff, along with this
Order, copies of the court-approved 42 U.S.C. § 1983 form.
Dated this 24th day of September, 2018.

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