United States District Court, D. Colorado
ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT
GORDON P. GALLAGHER, Magistrate Judge.
Plaintiff, Earl Lynn Stults, is detained at the Mesa County Detention Facility in Grand Junction, Colorado. Mr. Stults initiated this action by filing pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983. He has paid the $400.00 filing fee.
On November 4, 2014, Magistrate Judge Boyd N. Boland reviewed the Complaint and determined that it was deficient because the named Defendant, Mesa County Detention Facility, is not a suable entity and the Complaint did not allege facts sufficient to hold Mesa County liable under § 1983. (ECF No. 3). Magistrate Judge Boland thus ordered Mr. Stults to file an amended complaint, within thirty days, that complied with the pleading requirements of Fed.R.Civ.P. 8, and stated facts and allegations to show that either Mesa County, or individual County officers and/or employees, had violated his constitutional rights so as to be actionable under § 1983. ( Id. ).
After obtaining an extension of time, Mr. Stults filed his "revised claims" on December 24, 2014. (ECF No. 14). The Court construes the document as Plaintiff's amended complaint.
The Court must construe the amended complaint liberally because Mr. Stults 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. For the reasons stated below, Mr. Stults will be allowed one final opportunity to cure the defects in his pleading. He must file a second amended complaint, in compliance with the directives below, if he wishes to pursue his claims in this action.
I. Amended Complaint
In the amended complaint, Mr. Stults alleges that he is a disabled veteran, who has been detained at the Mesa County Detention Facility since May 1, 2014. He alleges that detention officers have failed to recognize and accommodate his physical disabilities, and that the jail's physical accommodations are inadequate. Plaintiff states that he has fallen out of his wheelchair numerous times, that he is unable to shower, that he cannot use the toilet, or transfer himself in and out of bed, and, that he is unable to operate his manual wheelchair without assistance. He states that "[t]here's an everyday neglect by the Pod officers to give any assistance." (ECF No. 14, at 11). He asserts that although jail officials transferred him to a "more ADA compliant cell" in November 2014 (ECF No. 14, at 9, 20), the cell does not accommodate his "severe health problems" ( id. at 11).
Mr. Stults further alleges in the amended complaint that on October 24, 2014, his right shoulder was injured while being transported by a Mesa County deputy sheriff from the hospital back to the jail and he suffered severe pain after he was forced head first into the back of a patrol car. He also asserts that he has been denied his medically-prescribed thrombotic socks for several months because he is unable to put the socks on himself, and "staff" refuse to assist him. ( Id. at 13). For relief, he seeks damages for violation of his constitutional rights and the Americans with Disabilities Act (ADA). ( Id. at 50). He also asks the Court to order his release to the Veterans Administration hospital. ( Id. ).
Affording the amended complaint a liberal construction, the Court discerns that Mr. Stults is attempting to assert § 1983 claims for deprivation of his Eighth Amendment rights, as well as a claim under the ADA.
A. Constitutional claims
Plaintiff's general allegations that his medical needs have been ignored or neglected by the Defendants, Mesa County Detention Facility medical staff and custody officers, are too vague to state an arguable claim for relief. See Swoboda v. Dubach, 992 F.2d 286, 289-90 (10th Cir.1993) (vague, conclusory allegations are insufficient to form the basis for a § 1983 cause of action); Hall, 935 F.2d at 1110; Ketchum v. Cruz, 775 F.Supp. 1399, 1403 (D. Colo. 1991), aff'd 961 F.2d 916 (10th Cir. 1992).
Magistrate Judge Boland advised Plaintiff in the November 4, 2014 Order that he may sue John or Jane Doe Defendants if he does not know the names of the individuals who violated his constitutional rights. However, Plaintiff was warned that he must allege specific facts to show that each individual was personally involved in a deprivation of his constitutional rights. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (a § 1983 claim requires "personal involvement in the alleged constitutional violation"); Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); "[D]efendant-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... -express or otherwise-showing their authorization or approval of such misconduct.'" Dodds v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir. 2010) (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (stating that a supervisor can only be held liable for his own deliberate intentional acts).
"Although the Due Process Clause governs a pretrial detainee's claim of unconstitutional conditions of confinement, the Eighth Amendment standard provides the benchmark for such claims." Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.1998) (citation omitted). To state an arguable Eighth Amendment claim, a plaintiff must allege facts to show that jail officers or medical personnel acted with deliberate ...