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 8, 2015 (ECF No. 8).
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. 4).
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 complaint is deficient. For the reasons stated below, Plaintiff will be directed to file an amended complaint.
In his Complaint, Plaintiff claims that Defendants have violated his First and Eighth Amendment rights by denying him medical care, using excessive force and retaliating against him. He seeks damages and injunctive relief.
I. Parties Sued
A. BOP and Official Capacity
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).
B. John Does
Mr. James may use fictitious names, such as "John or Jane Doe, " if he does not know the real names of the individuals who allegedly violated his rights. However, if Mr. James uses fictitious names he must provide sufficient information about each defendant so that he or she can be identified for purposes of service.
C. Rattan and Kiaug
Finally, the Court notes that Plaintiff refers to Defendants Rattan and Kiaug in the text of the Complaint and in the “Parties” section. However, these Defendants are not included in the caption of the Prisoner Complaint. Plaintiff ...