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Eller v. Lish

United States District Court, D. Colorado

February 2, 2016

WILLIAM B. ELLER, Plaintiff,
v.
LISH, KAUTZ, LAST UNKNOWN, MEGAN, LAST UNKNOWN, CHANTELLE, JONES, Mr., SPAIN, Mr., HODGES, Mr., and YOUNGER, Mr., Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Gordon P. Gallagher United States Magistrate Judge

Plaintiff, William B. Eller, is in the custody of the Colorado Department of Corrections (CDOC) and is incarcerated at the Correctional Facility in Buena Vista, Colorado. He has filed pro se a Complaint pursuant to 28 U.S.C.§1343 and 42 U.S.C.§1983 asserting a deprivation of his constitutional rights. Plaintiff has been granted leave to proceed in forma pauperis, pursuant to 28 U.S.C.§1915.

The Court must construe the Complaint liberally because Mr. Eller 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. The Court has reviewed the complaint and has determined that it is deficient. For the reasons discussed below, Mr. Eller will be ordered to file an amended complaint.

I. The Complaint

Plaintiff alleges in the Complaint that on February 13, 2015, he was beaten by several CDOC officials at the Sterling Correctional Facility (SCF)--who are not named Defendants in this action--and suffered a broken bone in his left leg. He alleges that the correctional officers threatened him, conspired to cover up the assault by issuing him a disciplinary charge for advocating a facility disruption, and refused his request for transport to medical. Mr. Eller further states that medical staff at SCF conspired to cover up the fact that he suffered a broken leg during a staff assault. Plaintiff alleges that his case manager delayed in providing him grievance forms so that he could complain about the assault, and that a sergeant, who is not a named Defendant, confiscated his Step I grievance, and threatened to delay Plaintiff’s parole release if he pursued a civil lawsuit. Mr. Eller asserts that the sergeant then gave him a false disciplinary write up for tampering with a security device. Plaintiff states that other correctional officials, who are not named Defendants, refused to escort him to his “parole rescission” hearing on February 17, 2015, in violation of his due process rights. (ECF No. 1 at 7). As a result, Plaintiff was “set back 180 days to remain in CDOC/SCF prison in protective custody.” (Id.).

Mr. Eller alleges that Defendants Spain, Hodges, Jones and Chantelle acted with deliberate indifference to his serious medical needs by interfering with his access to, or denying him, medical treatment for his broken bone. He further alleges that Defendant physicians Lish and Kaush implemented an unconstitutional policy that if an inmate suffers a broken bone that is not protruding through the skin, the inmate cannot receive emergency transport to an outside hospital’s emergency room. Instead, the inmate must submit a medical kite. Plaintiff states that he suffered dizziness, migraine headaches, shortness of breath and extreme pain in his leg due to the delay in providing medical treatment. On February 25, 2015, Defendant Younger escorted Mr. Eller to the x-ray technician from an upstairs cell, and forced Plaintiff to climb 16 stairs with a broken leg, causing him severe pain. After the x-ray confirmed that Plaintiff’s leg was broken, Defendant Younger forced him to climb back up the 16 stairs to his cell. Plaintiff was transported to an outside orthopedic surgeon on March 4, 2015, or medical treatment. He states that two correctional officers, who are not named Defendants, forced him to climb into a van and up three steps bearing full weight on his broken leg, and causing him unnecessary pain and suffering.

Mr. Eller further alleges that staff refused to escort him to his March 2, 2015, disciplinary hearing on the false charge of advocating a facility disruption, and that he was denied the opportunity to call witnesses and an inmate representative. The hearing officer determined that Plaintiff was guilty as charged and sanctioned him with 20 days of punitive segregation and the loss of 20 days of good time credits.

Mr. Eller asserts that the Defendants have violated his First, Eighth and Fourteenth Amendment rights. He seeks monetary relief.

II. Analysis

A. Personal Participation

The Complaint is deficient because Mr. Eller fails to allege specific facts to show the personal participation of each named Defendant in a deprivation of his Constitutional rights. Personal participation is an essential element of a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); 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). A supervisor can only be held liable for his own deliberate intentional acts. See “shcroft v. Iqbal, 556 U.S. 662, 676 (2009); Serna v. Colo. Dep't of Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006) (“Supervisors are only liable under§1983 for their own culpable involvement in the violation of a person's constitutional rights."); see also Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (A[Section] 1983 does not recognize a concept of strict supervisor liability; the defendant's role must be more than one of abstract authority over individuals who actually committed a constitutional violation.").

Mr. Eller will be given an opportunity to amend his complaint to assert specific facts to show each Defendant’s personal involvement in an alleged deprivation of his First, Eighth and Fourteenth Amendment rights. Plaintiff names several correctional officers in the body of the Complaint while discussing his constitutional claims, but many of these individuals are named as Defendants in the caption. If Mr. Eller intends to sue any of these additional individuals for damages under § 1983, he must name each one as a Defendant in the case caption of the Amended Complaint and allege specific facts to show the individual’s personal participation in an alleged constitutional deprivation.

B. Eighth Amendment - Use of Excessive Force

Mr. Eller alleges that he was beaten up by several prison guards and suffered a broken leg, but he does not allege that any of the named Defendants engaged in ...


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