United States District Court, District of Colorado
ORDER TO DISMISS IN PART AND TO DRAW IN PART
LEWIS T. BABCOCK, SENIOR JUDGE UNITED STATES DISTRICT COURT
Plaintiff Neal O’Neill currently is detained at the El Dorado County Jail in Placerville, California. Plaintiff was detained at the El Paso County Criminal Justice Center in Colorado Springs, Colorado, when he initiated this action on July 30, 2014, by filing a Prisoner Complaint pursuant to 42 U.S.C. §§ 1983 and 1985 and the Americans with Disabilities Act (ADA), 42 U.S.C. § “12102(c), ” and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. Plaintiff is challenging the conditions of his confinement while he was detained at the Criminal Justice Center.
On August 4, 2014, Magistrate Judge Boyd N. Boland granted the § 1915 Motion and directed Plaintiff to amend the Complaint. Specifically, Plaintiff was directed to file an Amended Complaint that complies with Fed.R.Civ.P. 8. Plaintiff was told that (1) his claims are conclusory, disorganized, repetitive, and vague; (2) he does not state which claims are asserted pursuant to § 1983 and which ones are asserted pursuant to the ADA; (3) a claim cannot be asserted against a municipality when only isolated incidents are alleged; (4) claims cannot be presented pursuant to the ADA unless a plaintiff is a qualified individual with a disability; (5) claims must be stated in a simple and concise manner and not in a long, chronological statement; and (6) he must state how each named defendant participated in the alleged constitutional deprivation. Plaintiff filed an Amended Complaint on September 16, 2014.
The Court must construe the Amended Complaint liberally because Plaintiff is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If a complaint reasonably can be read “to state a valid claim on which the plaintiff could prevail, [a court] should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, a court should not act as a pro se litigant’s advocate. See Id. For the reasons stated below, the Second Amended Complaint and the action will be drawn to a district judge and to a magistrate judge in part and dismissed in part pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff asserts seven claims in the Amended Complaint and seeks money damages. He asserts jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), 42 U.S.C. § 12112(a) (ADA), and 42 U.S.C. § 1985. Plaintiff’s reliance on Bivens is misplaced because he does not assert a claim against a federal employee.
Plaintiff titles Claim One, “Thieft [sic] of Wedding Band/Retaliation.” He asserts that on September 23, 2013, after he removed his knee brace when entering the El Paso County Courthouse, deputy sheriffs took the brace; and since September 23, Plaintiff has not seen the brace. Plaintiff contends the knee brace was given to him by the El Dorado County Jail, and he needs the brace to walk. Plaintiff further asserts that, when he attempted to file a grievance regarding the taking of the brace, his wedding band was taken in retaliation for requesting a grievance form to file against the deputy who took his brace. Plaintiff also asserts that when he questioned Sergeant Nuss about his ring, Sergeant Ness stated to Plaintiff that maybe Plaintiff had sold the ring for commissary products. Plaintiff contends his First Amendment rights, and possibly his rights under 42 U.S.C. § 1985, have been violated because he has been retaliated against and denied his right to file a claim.
Claim Two is titled, “Eigth [sic] Amendment Violation.” In this claim, Plaintiff asserts sheriff deputies took his brace, which placed him at high risk of further injury and caused him pain. Plaintiff further asserts that within two hours of being booked he saw medical and again he was denied his brace. Finally, Plaintiff asserts that since 2009 he has been qualified as disabled under 42 U.S.C. § 12112(a).
Claim Three is titled, “8th Amendment Violation(s), ” and is asserted against Defendant Nurse Muzzy who told a deputy sheriff to take Plaintiff’s cane from him only three weeks after Dr. Herr had prescribed it and five days after Plaintiff had received it. Plaintiff states he does not know the deputy sheriff’s name.
Claim Four is titled, “Deliberate Indifference, ” and is asserted against Defendants Dr. Howard and Kathy Robinson. Plaintiff asserts that thirty days after Dr. Herr had ordered the use of the remainder of Plaintiff’s PreserVision tablets and the oral treatment of toenail fungus all treatments were stopped. Plaintiff further asserts he grieved these actions, then saw Defendants Dr. Howard and Kathy Robinson, who would not discuss any of Plaintiff’s medical issues except for a lump on Plaintiff’s head and removed him from Dr. Herr’s office when he attempted to ask about the other medical issues, including denial of his brace, cane, and other medications for his toenail fungus and macular degeneration.
Claim Five is titled, “Conspired Acts of Retaliation, ” and is asserted against Defendants Deputy Nuncio and Nurse Trull. Plaintiff alleges that Defendant Sheriff Deputy Nuncio told Nurse Trull to withhold his morning medications on December 16, 2013, because Plaintiff refused to sign a warning that he had filed too many grievances with medical. Defendant Nuncio then allegedly moved Plaintiff to administrative segregation for not signing the warning, and according to Nurse Trull falsified Plaintiff’s signature on a statement that Plaintiff had refused his medications. Plaintiff further states that his morning medications on December 16, 2013, were delayed for seven hours.
Claim Six is titled, “Cruel, Unusual Punishment, ” and is asserted against Deputy Nuncio. Plaintiff alleges that Defendant Nuncio ordered him placed in administrative segregation for five days, where he was stripped of all his clothing and given only a blanket. Plaintiff further alleges that his personal hygiene items were taken, as well as his visitation rights, and the cell was not disinfected.
Finally, Claim Seven is titled, “First Amendment Violation, ” and is asserted against Defendants Sergeant Klug, Sergeant Hebert, Sergeant Patterson, Deputy Hishoe, and Deputy Sergeant Deno. Plaintiff alleges that he desired to file a complaint with the Colorado Springs Internal Affairs Division; but to do so he needed to use a ball point pen to fill out the form. Plaintiff contends that from February 14, 2014, until March 15, 2014, each of these defendants refused to provide him with a ball point pen; and in doing so they hindered his efforts to complete required administrative procedures prior to filing this Complaint.
The following claims and defendants will be dismissed for the following reasons.
In Claim One, Plaintiff fails to state who retaliated against him by taking his wedding ring. The only individual named in Claim One is Sergeant Ness, who is not listed as a defendant in this action. The only claim asserted against Sergeant Ness is that he made a slanderous comment about ...