United States District Court, D. Colorado
ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT
GORDON P. GALLAGHER UNITED STATES MAGISTRATE JUDGE.
Plaintiff, Dean D Hackborn, is a prisoner in the custody of the Colorado Department of Corrections. Mr. Hackborn initiated this action by filing pro se Prisoner Complaint pursuant to 42 U.S.C. § 1983. Pursuant to the Court’s Order dated October 21, 2015, Plaintiff filed an Amended Complaint (ECF No. 13).
The Court must construe the amended 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 remains deficient. For the reasons stated below, Plaintiff will be directed to file a second amended complaint.
In the Prisoner Complaint, Mr. Hackborn makes rambling assertions without clearly identifying what Defendant is responsible for what actions he is complaining about. His factual allegations are vague and difficult to decipher. Neither the Court nor Defendant is required to guess in order to determine the specific factual allegations that support the claims Mr. Hackborn is asserting. The general rule that pro se pleadings must be construed liberally has limits and “the court cannot take on the responsibility of serving as the litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Instead, it is the Plaintiff’s responsibility to present his claims clearly and concisely in a manageable format that allows the Court and Defendant to know what claims are being asserted and to be able to respond to those claims.
Furthermore, any constitutional claims that Mr. Hackborn might assert against the Colorado Department of Corrections (CDOC) pursuant to 42 U.S.C. § 1983 are barred by Eleventh Amendment immunity, which extends to states and state agencies deemed “arms of the state” that have not waived their immunity, regardless of the relief sought. Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252-53 (10th Cir. 2007). The CDOC is entitled to Eleventh Amendment immunity. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988) (immunity of CDOC). Congress did not abrogate Eleventh Amendment immunity through Section 1983. See Quern v. Jordan, 440 U.S. 332, 345 (1979). Accordingly, the CDOC is an improper party to this action and should not be named as a Defendant in the Amended Complaint.
The Complaint is deficient to the extent Plaintiff sues Governor John Hickenlooper and Rick Raemish as he has failed to assert any specific personal participation by such parties. Plaintiff must assert personal participation by a named defendant in the alleged constitutional violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal participation, Plaintiff must show how each named individual caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). There must be an affirmative link between the alleged constitutional violation and each defendant’s participation, control or direction, or failure to supervise. See Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993).
Mr. Hackborn’s Eighth Amendment claim also is insufficient to state a claim. In this regard, the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citation omitted). The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. CONST. Amend. VIII. Certain conditions of confinement, if they inflict pain unnecessarily and wantonly, may constitute cruel and unusual punishment under the Eighth Amendment. Whitley v. Albers, 475 U.S. 312, 319 (1986). “An inmate making a direct challenge to conditions of confinement under the 8th Amendment, must show that, judged by contemporary standards of decency, the conditions either involve the wanton and unnecessary infliction of pain, that they are grossly disproportionate to the severity of the crime, or that they entail serious deprivation of basic human needs.” Georgacarakos v. Wiley, 2010 WL 1291833 *11 (D. Colo. March 30, 2010) (internal quotation marks and citation omitted). “Prison officials must provide adequate food, clothing, shelter, and medical care to inmates, and take reasonable measures to guarantee those inmates' safety.” Id. (citation omitted).
An Eighth Amendment claim includes both an objective component, whether the deprivation of a basic human need is sufficiently serious, and a subjective component, whether the officials acted with a sufficiently culpable state of mind. Wilson v. Seiter, 501 U.S. 294, 298 (1991). As for the objective component, “extreme deprivations” are required to make out a conditions-of-confinement claim. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992). Thus, in a conditions-of-confinement case, a “sufficiently serious” deprivation is shown when “a prison official's act or omission ... result[s] in the denial of ‘the minimal civilized measure of life's necessities.’ ” Farmer, 511 U.S. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). The subjective component follows from the principle that “ ‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’ ” Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 297). The “deliberate indifference” subjective standard applies to claims of inhumane conditions of confinement. Wilson, 501 U.S. at 303-04. A finding of deliberate indifference requires a showing that the defendant “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. Under this standard, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.
As to the objective component, Mr. Hackborn’s allegations do not state a claim for deprivation “of the minimal measure of life's necessities, ” as required to state a claim upon which relief can be granted pursuant to the Eighth Amendment. Nor are his allegations sufficient to show exposure “to a risk that is so grave that it violates contemporary standards of decency.” See Helling v. McKinney, 509 U.S. 25, 36 (1993). Further, Mr. Hackborn's allegations are too vague and conclusory to state a claim upon which relief can be granted. In the context of a medical treatment claim, he must state exactly what objectively serious medical need he was suffering from and what each specific Defendant did that amounted to deliberate indifference to that need. He must provide specific dates and provide a short statement as to each claim against each defendant. Plaintiff’s complaint provides a statement of facts that does not specify what constitutional claims he is asserting against each defendant. He merely identifies a defendant and makes rambling statements.
Moreover, Plaintiff cannot maintain an ADA claim against individual defendants in their individual capacities because the statute does not impose individual liability. See Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999). Title II of the ADA provides that “[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132. The Act defines a “public entity” as any State or local government, department, agency, special purpose district, or other instrumentality of a State or States or local government; and the National Railroad Passenger Corporation, and any commuter authority. 42 U.S.C. § 12131(1) (emphasis added). See Robertson v. Las Animas Cnty. Sheriff's Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007). Title II does not impose liability on individuals. See Montez v. Romer, 32 F.Supp.2d 1235, 1240-41 (D. Colo. 1999).
Second, to state a claim under Title II, a plaintiff must allege that “(1) [s]he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability.” Robertson, 500 F.3d at 1193. Mr. Hackborn does not state with any specificity or in the description of the background of the case that he is a qualified individual with a disability and how he was excluded from participation in or denied benefits of a public entity’s services, programs, or activities, and how such exclusion, denial of benefits, or discrimination was because of a disability.
Moreover, his claims fail to state a claim under the ADA. See Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) ("[P]urely medical decisions ... do not ordinarily fall within the scope of the ADA or the Rehabilitation Act."); Rashad v. Doughty, 4 F.App'x 558 (10th Cir. 2001) (holding that "the failure to provide medical treatment to a disabled prisoner, while perhaps raising Eighth Amendment concerns in certain circumstances, does not constitute an ADA violation); Moore v. Prison Health Services, Inc., 201 F.3d 448 (10th Cir. 1999) (finding that the ADA and Rehabilitation Act afford disabled persons legal rights regarding access to programs and activities enjoyed by all, not a general cause of action for challenging the medical treatment of their underlying disabilities). Accord Burger v. Bloomberg, 418 F.3d 882 (8th Cir. 2005) (medical treatment decisions are not a basis for ADA claims); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (holding that "the [ADA] would not be violated by a prison's simply failing to attend to the medical needs of its disabled prisoners ... [t]he ADA does not create a remedy for medical malpractice."); Lesley v. Chie, 250 F.3d 47, 55 (1st Cir. 2001) ("[A] plaintiff's showing of medical unreasonableness must be framed within some larger theory of disability discrimination."); Thomas v. Pa. Dep't of Corr., 615 F.Supp.2d 411, 429 (W.D. Pa. 2009) (plaintiff's requests for a handicap cell that were denied based on a medical determination that they were not warranted did not support discriminatory treatment in violation of Title II of the ADA).
Moreover, as the Court has previously instructed, under C.R.S. § 13-80-102(1)(h), a two-year statute of limitations applies to "[a]ll actions against any public or governmental entity or any employee of a public or governmental entity, except as otherwise provided in ... section 13-80-103." Thus, Plaintiff cannot file claims for actions that occurred on or before August 7, 2013.
To the extent Plaintiff asserts a constitutional claim against an individual, he must allege specific facts that demonstrate how that individual personally participated in the asserted constitutional violation. See Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011) (allegations of “personal participation in the specific constitutional violation complained of [are] essential”). The “denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10thCir. 2009). Furthermore, a defendant may not be held liable for the unconstitutional conduct of his or her subordinates on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Although a defendant can be liable in a § 1983 action based on his or her supervisory responsibilities, a claim of supervisory liability must be supported by allegations ...