United States District Court, D. Colorado
PLAINTIFF TO FILE AMENDED COMPLAINT
Gordon P. Gallagher United States Magistrate Judge
Plaintiff, Maurice Wilson, is a federal prisoner in the custody of the Federal Bureau of Prisons (BOP). He currently is confined at the Florence High Penitentiary in Florence, Colorado. Mr. Wilson has filed pro se an Amended Prisoner Complaint (ECF No. 13) pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) claiming his rights under the United States Constitution were violated. He seeks damages and injunctive relief as relief.
The Court must construe the complaint liberally because Plaintiff 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 cannot act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. As part of the court’s review pursuant to D.C.COLO.LCivR 8.1(b), the court has determined that the operative complaint is deficient. For the reasons stated below, Plaintiff will be directed to file an amended complaint.
I. The Amended Complaint
In his Amended Complaint, Plaintiff makes the following allegations. Eric Earwin is the Captain of the USP and supervises all of its officers. M. Rios is his immediate superior. Pursuant to BOP Program Statement 5310-16, BOP operates the Secure Stages Program, which is a Psychology Treatment Program for the treatment of Care Level 3 inmates with mental illness. Assignment to Level 3 is an exhaustive, mutli-level review and involves clinical and non-clinical BOP employees. Defendant Jose Santana, Chief of the Designations and Sentence Computation Center located in Grand Prairie, Texas, assigns final placement (ECF No. 8, p. 6, ¶ 8). Upon admission to the program, an inmate’s treatment is overseen by Defendant Jessica Seaton, the Stages program coordinator at Florence. Non-clinical operations are overseen by Defendant Lieutenant Donald Wilcox. Starting in January 2015, Plaintiff moved into the STAGES program (Steps Toward Growth and Emotional Strength) at USP Florence.
Beginning in March of 2015, Defendants Wilcox and Seaton began a campaign of harassment involving verbal abuse and threats to expel plaintiff from the program if he did not drop his pending lawsuit at Civil Action No. 14-00421 (MSK). He claims that Defendants Cozza-Rhodes, Rios, Earwin and Laird have fostered a culture of retaliation against inmates who engage in protected litigation activity. He further claims that his therapist stated she was going to manipulate Plaintiff’s care level to reduce his access to psychological services to assist Wilcox and Seaton. As a result of Plaintiff’s mental illness and the constant harassment, Plaintiff became suicidal and began a regressive spiral of behavior and self harm. He further claims that Defendants Seaton and Cozza-Rhodes expelled him from the program in April of 2015 and placed him in the Solitary Confinement unit (SHU).
Defendant Gardner is a SHU Lieutenant responsible for housing assignments and supervision of day-today activities and services in the SHU (Am. Compl. ¶ 16). Plaintiff complains that he did not have daily access to medical care, did not receive a single SRO hearing, received only one hour per week of recreation, had no cellmate and received a clean set of clothing only once every fourteen days (Am. Compl. ¶ 17). He complains that when he asked for Jeremy Pinson as a cellmate, he was told that Defendant Cozza-Rhodes has enforced a strict racial seperation.
He further alleges that Defendant Zohn was responsible for weekly psychotherapy sessions, monthly SHU reviews and six-month comprehensive restrictive mental health reviews. He states that she was wholly uncooperative with creating a collaborative individual treatment plan and even mocked Plaintiff’s mental illness from April to November of 2015 (Am. Compl. ¶ 20).
Mr. Wilson’s seeks to impose liability for violations of his First, Eighth and Fourteenth Amendment rights. His First Amendment claim alleges retaliation for filing and pursuing his previous lawsuit. To state a claim upon which relief can be granted for First Amendment retaliation, Plaintiff must plead facts indicating that he can plausibly prove three elements at trial: 1) that Plaintiff was engaged in constitutionally protected activity; 2) Defendants' actions caused Plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and 3) that Defendants' adverse actions were substantially motivated by Plaintiff's exercise of constitutionally protected conduct. Shero v. City of Grove, 510 F.3d 1196, 1203 (10thCir. 2007). To prevail on the causation element of a claim for retaliation, Plaintiff "must prove that ‘but for' the retaliatory motive, the incidents to which he refers ... would not have taken place." Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). That is, "it is imperative that [P]laintiff's pleading be factual and not conclusory. Mere allegations of constitutional retaliation will not suffice; [P]laintiff[ ] must, rather, allege specific facts showing retaliation because of the exercise of ... constitutional rights." Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990); accord Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999) ("[T]he inmate must allege more than his personal belief that he is the victim of retaliation."). It is not the role of the federal judiciary to scrutinize and interfere with the daily operations of a state prison and the restriction on retaliation does not change this role. Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990). Simply by engaging in protected activity an inmate does not become inoculated from the normal conditions of confinement experienced by convicted felons serving time in prison. Id. Thus, a prisoner alleging retaliation must prove that but for the retaliatory motive, the incidents he claims were retaliatory, including disciplinary action, would not have taken place. Id. at 949-50. In addition an inmate must allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights. Peterson, 149 F.3d at 1145. Thus, to establish a retaliation claim Plaintiff must demonstrate: 1) he was engaged in constitutionally protected activity; 2) defendant's actions caused plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and 3) defendant's adverse action was substantially motivated as a response to plaintiff's exercise of constitutionally protected conduct. Allen v. Corrections Corp. of America, 524 F. App’x 460, 463 (10th Cir. 2013).
The Eighth Amendment requires prison officials to “take reasonable measures to guarantee the safety of the inmates” and are liable for failing to protect an inmate if they are deliberately indifferent to a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quotation omitted). Establishing an Eighth Amendment conditions-of-confinement claim requires a showing that: (1) objectively, the deprivation was “sufficiently serious so as to deprive inmates of the minimal civilized measure of life's necessities . . . . [or] so as [to] constitute a substantial risk of serious harm, ” and (2) subjectively, the defendants “act[ed] or fail[ed] to act with deliberate indifference to inmate health and safety.” Shannon v. Graves, 257 F.3d 1164, 1168 (10th Cir. 2001) (internal quotations omitted). Deliberate indifference means that "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, 511 U.S. at 847. "An official’s failure to alleviate a significant risk of which he was unaware, no matter how obvious the risk or how gross his negligence in failing to perceive it, is not an infliction of punishment and therefore not a constitutional violation." Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008).
It appears that Plaintiff may be asserting an Eighth Amendment claim concerning his mental health treatment. This Court notes that the Defendants in his pending action have submitted statements that Plaintiff was removed from his programing due to disruption and that Plaintiff is under further evaluation for a transfer to another facility. Moreover, it appears that Plaintiff has not exhausted this claim. To the extent that he claims that the conditions of confinement in the SHU violate the Eighth Amendment, he fails to state a claim. His conclusory allegations do not suffice to demonstrate a serious deprivation of the basic necessities of life. Moreover, he must have exhausted any such claim before this Court can review his claim.
Plaintiff also cites the Fourteenth Amendment as a basis for liability. Plaintiff’s due process claim depends upon the existence of a constitutionally protected liberty interest. It is unclear exactly what protected liberty interest Pplaintiff is asserting in this action.
The complaint is deficient because it does not comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. The twin purposes of a complaint are to give the opposing parties fair notice of the basis for the claims against them so that they may respond and to allow the Court to conclude that the allegations, if proven, show that the plaintiff is entitled to relief. See Monument Builders of Greater Kansas City, Inc. v. American Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989). The requirements of Fed.R.Civ.P. 8 are designed to meet these purposes. See TV Communications Network, Inc. v. ESPN, Inc., 767 F.Supp. 1062, 1069 (D. Colo. 1991), aff’d, 964 F.2d 1022 (10th Cir. 1992). Rule 8(a) provides that a complaint “must contain (1) a short and plain statement of the grounds for the court’s jurisdiction, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought.” The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that “[e]ach allegation must be simple, concise, and direct.” Taken together, Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading rules. Prolix, vague, or unintelligible pleadings violate Rule 8.
Claims must be presented clearly and concisely in a manageable format that allows a court and a defendant to know what claims are being asserted and to be able to respond to those claims. New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d 881, 883 (10th Cir. 1957). For the purposes of Rule 8(a), “[i]t is sufficient, and indeed all that is permissible, if the complaint ...