United States District Court, D. Colorado
AMENDED ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Gordon P. Gallagher United States Magistrate Judge
In an effort to clarify the Court’s requirements for Mr. James’ Amended Complaint in this action, the Court is issuing this Amended Order to File an Amended Complaint, which supersedes the Court’s previous Order to Amend dated December 16, 2015 (ECF No. 7).
Plaintiff, Rashod James, 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. James has filed pro se a Prisoner Complaint 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. (ECF No. 1). He has been granted leave to proceed in forma pauperis. (ECF No. 6). Plaintiff seeks damages and injunctive 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. For the reasons stated below, Plaintiff will be directed to file an amended complaint.
I. Parties Sued
First, the Court notes that Mr. James is suing the Bureau of Prisons and multiple prison officials. He does not specify if he is suing the prison officials in their official or individual capacity. Bivens creates a cause of action only against federal officials in their individual capacities for money damages; it does not create a cause of action against the United States (or the Bureau of Prisons). Simmat v. United States Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005); Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001). In addition, claims against the prison officials in their official capacity cannot proceed because "[t]here is no such animal as a Bivens suit against a public official tortfeasor in his or her official capacity." Id.
However, Plaintiff may pursue claims for injunctive relief against the BOP or the prison officials in their official capacity. The Administrative Procedures Act, 5 U.S.C. § 702, waives sovereign immunity in most suits for claims “other than money damages.” Id. at 1238-39 (finding that the Bureau of Prisons is an agency subject to the waiver of sovereign immunity in § 702, and therefore sovereign immunity did not bar prisoner's Eighth Amendment claim for denying dental care).
In his Complaint, Plaintiff asserts claims based on First, Fifth, and Eighth Amendment violations.
A. First Claim
In his first claim, Plaintiff alleges First and Eighth Amendment violations with respect to his claim of prison officials labeling him a snitch. Plaintiff alleges that Defendants Hamaker, Strube, and Earwin have told other inmates he is a “snitch” in retaliation for filing administrative grievances and complaints on staff regarding the conditions of his confinement in the Segregated Housing Unit (SHU). He claims that labeling him a snitch places him in grave danger. He alleges that Defendants Cozza-Rhodes, Rios, and Earwin, are the upper management staff at USP Florence and they have fostered a culture, custom and practice of retaliation against inmates and staff who file grievances, lawsuits, or EEO Complaints. He does not provide any dates for these events.
In his amended complaint, Plaintiff should provide dates (or approximate dates) of the events alleged. The Court is also aware that Mr. James is pursuing a similar, if not identical, claim in another action in this court, see James v. Robb, 15-cv-02700-GPG. Mr. James is instructed that he cannot pursue the same claim in two separate actions.
B. Second Claim
In his second claim, he asserts that throughout his stay at the SHU he was “deprived of clean laundry, hygiene and sanitation supplies, law library access, outdoor recreation and meaningful access to medical and psychology ...