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Custard v. Armijo

United States District Court, D. Colorado

May 19, 2015

BOB ALLEN CUSTARD, Plaintiff,
v.
ARMIJO, Mr., ATAUVICH, Mr. D. BERKABILE, Mr., CAMACHO, Mr., J. CEDENO, Mr., FRANK CORDOVA, Mr., KATE ERWIN, Ms., FRANCIA, Ms., FITZGERALD, Mr., GACONI, Mr., HENRY, Mr., HEUETT, Mr., HOLMAN, Mr., HUDDLESTON, Mr., HUMPHRIES, Mr., KASDON, Ms., LUNGREN, Ms., McMULLEN, Mr., OSAGIE, Mr., OWENS, Mr., PADILLA, Mr., RANGEL, Mr., ROBINSON, Mr., SANTINI, Mr., SIMPLER, Mr., UNKNOWN NAMED DEFENDANTS 1-14, and THE UNITED STATES OF AMERICA, Defendants.

ORDER TO DISMISS IN PART AND TO ASSIGN CASE

LEWIS T. BABCOCK, Senior District Judge.

Plaintiff, Bob Alllen Custard, is in the custody of the federal Bureau of Prisons (BOP) at the United States Penitentiary Administrative Maximum (ADX) in Florence, Colorado. He initiated this action by filing a Prisoner Complaint. On March 4, 2015, the Court entered an Order Directing Plaintiff to Cure Deficiencies, to File an Amended Complaint and to Show Cause. (ECF No. 3). Mr. Custard filed an Amended Complaint (ECF No. 8) on April 15, 2015, and paid the $400.00 filing fee on April 16, 2015 (ECF No. 10). Plaintiff is subject to 28 U.S.C. § 1915(g) restrictions; however, those restrictions are not implicated in this action because he has paid the filing fee. Accordingly, the Order to Show Cause will be discharged.

Pursuant to 28 U.S.C. § 1915A, the Court is required to review the second Amended Complaint because Mr. Custard is a prisoner and he is seeking redress from officers or employees of a governmental entity. Under § 1915A(b)(1), the Court must dismiss the Amended Complaint, or any portion thereof, that is frivolous. A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 324 (1989).

The Court must construe the Amended Complaint liberally because Mr. Custard 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 act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons discussed below, this action will be dismissed in part, and the remainder assigned to District Judge Robert E. Blackburn and Magistrate Judge Craig B. Shaffer.

I. The Amended Complaint

Mr. Custard sues 26 named Defendants in the Amended Complaint and 14 unnamed Defendants. He asserts constitutional claims against the individual Defendants under Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971), and claims against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680.

The Court observes that Mr. Custard's handwriting is difficult to decipher. Plaintiff was warned in the March 4 Order that the Amended Complaint must be typed or written legibly. (ECF No. 3, at 5). Mr. Custard asserts seven claims in his Amended Complaint. As best the Court is able to discern, he makes the following factual allegations in support of his claims.

Claim One: Mr. Custard alleges that he was placed in the Special Housing Unit (SHU) in April 2014. He states that the shower in his SHU cell was 12" higher than the concrete floor of the cell, which is coated with slick enamel paint. He further alleges that prison officials knew that he would have difficulty making the transition between a wet shower floor and a slippery cell floor, one foot below, because he was 60 years old, his legs are different lengths, and he suffers from degenerative disc disease. Plaintiff alleges that over a four-day period, he asked Defendants Fitzgerald, Osagie, Huddleston, Holman, Robinson, Camacho, Armijo, Francia, Owens, and Cedeno for a shower floor mat, a shower curtain, and shower shoes, so that he would not slip going into and out of the shower. Mr. Custard states that other inmates in the SHU were provided with the requested items, but the Defendants ignored Plaintiff's requests. Mr. Custard thereafter slipped on the wet floor and suffered fractures to his spinal discs, as well as lacerations and a concussion. He asserts that the above-named Defendants conspired to deprive him of the shower items in violation of his Eighth Amendment rights and in retaliation for the lawsuits and grievance he has filed, as evidenced by their statements to him that if he had not filed so many grievances and lawsuits, he would have received the requested shower items.
Claim Two: Mr. Custard alleges that while in the SHU, he was deliberately housed in a cell that had "dozens of 1/2"-1" long "jagged barbs of stainless steel" projecting from the cell walls in the shower and sink areas. (ECF No. 8, at 12). Plaintiff states that he injured himself twice on the steel barbs, and required 15 stitches to his right knee for the second injury. Mr. Custard alleges that Defendants Atauvich, Rangel, Berkabile, McMullen, Osagie, Armijo, Camacho, Fitzgerald, Henry, Gaconi, Heuett, Padilla and Robinson acknowledged to Plaintiff that the cell was dangerous, as evidenced by Plaintiff's previous injury when he slipped on the wet floor and cut himself on the steel barbs (claim one), but the Defendants continued to house him in the same cell and refused to repair the barbs in violation of his Eighth Amendment rights, and because of his grievance filings and lawsuits, as evidenced by their statements to him that if he stopped filing grievances and lawsuits, he could be moved to another cell.
Claim Three: Mr. Custard states that he suffers from severe chronic asthma. He alleges that on the night of May 20, 2014, some of the unknown Defendants, responding to a non-emergency situation, gassed the prisoner in the cell next door to Plaintiff with chemicals and pepper gas. The gas entered Plaintiff's cell through a vent in an adjoining wall, causing him to wake up gagging and coughing. Plaintiff states that he coughed up blood for several hours after the incident and lost consciousness a few times. Mr. Custard asserts that prison officials are required to remove asthmatic prisoners from an area in which chemical gassing is to be deployed in a non-emergency situation. He further asserts that Defendants Robinson, Cedeno, Humphries, Osagie, Berkabile and Gaconi knew about Plaintiff's severe asthma, and were aware that the gassing was going to occur, but they intentionally refused to have Plaintiff relocated beforehand, in violation of his Eighth Amendment rights and in retaliation for his filing grievances and lawsuits, as evidenced by their statements to him concerning his litigiousness. Plaintiff alleges that Defendant Berkabile also denied him access to medical care, even though he was coughing up blood for several hours. According to Mr. Custard, Defendant Berkabile told him: "You will get no medical treatment! You will just have to die." (ECF No. 8, at 21).
Claim Four: Mr. Custard alleges that he has been intentionally denied necessary medical treatment and surgeries for a chronic and painful shoulder condition, in violation of his Eighth Amendment rights. Specifically, he states that his right shoulder is visibly smaller than his left shoulder, and that he experiences searing nerve pain emanating from his right shoulder to his thumb, as well as numbness. Plaintiff alleges that an MRI performed by an outside facility on his right shoulder in June 2014 revealed the need for surgery and/or a shoulder replacement. ADX medical providers were notified of the MRI results, but Defendants Cordova (ADX medical department supervisor), Osagie (ADX Physician's Assistant), Lundgren (ADX nurse), Santini (ADX physician), Huddleston (ADX physician's assistant), Camacho (ADX physician's assistant), and unknown Defendants medical personnel at ADX, told Plaintiff that he would not receive the recommended surgery or any other medical treatment for his shoulder because of his grievances and lawsuits. Mr. Custard further asserts that unknown Defendant members of the ADX Medical Committee have refused to authorize his surgery, in violation of the Eighth Amendment.
Claim Five: Mr. Custard alleges that on December 5, 2014, a valve in his cell sink broke, causing water to shoot out from the faucet into the sink basin. Eventually the sink backed up because of encrusted pipes and water flowed onto the cell floor. The sink was fixed three days later. Plaintiff alleges that he spent three days and nights bailing water out of his cell, which caused him to pass out from sleep deprivation, and suffer a laceration, loss of blood and a concussion. Mr. Custard alleges that other cells nearby were vacant, but Defendant McMullen told him that he would not be moved to another cell because of his grievance and lawsuit filings. Plaintiff also asserts that Defendants Huddleston and Osagie denied him medical treatment for his injuries for approximately 10 hours, in violation of his Eighth Amendment rights.
Claim Six: Mr. Custard alleges that Defendant Kasdon (on September 5, 2013, January 10, 2014), Defendant McMullen (several times during the past two years, including on February 25, 2014), and two unknown Defendants (unspecified dates) called him a "snitch" in a loud voice, within earshot of other inmates, and that on April 1, 2014, Plaintiff was injured by a feces-coated dart, thrown at him by another inmate while he was in a recreation cage, resulting in blood loss and an infection. Mr. Custard asserts that the above-named Defendants have intentionally exposed him to a risk of serious harm, in violation of the Eighth Amendment, and in retaliation for his grievances and lawsuits, as evidenced by their statements to him.
Claim Seven: Mr. Custard alleges that Defendants Cedeno, Rangel, Simpler, Robinson, Kasdon, Santini and an unknown Defendant deprived him of an eating utensil for approximately two months, beginning in June 2014, after he was released from the SHU, in violation of his Eighth Amendment rights, and because of his grievances and lawsuits, as ...

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