United States District Court, D. Colorado
ORDER TO AMEND
Gordon P. Gallagher United States Magistrate Judge
Plaintiff, Thomas Dean Tillery, is a prisoner currently incarcerated at the Sterling Correctional Facility in Sterling, Colorado. On February 5, 2016, he filed pro se a Prisoner Complaint (ECF No. 1). He has been granted leave to proceed in forma pauperis. (ECF No. 4).
The court must construe the Complaint liberally because Mr. Tillery 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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the following reasons, Mr. Tillery will be directed to file an Amended Complaint if he wishes to pursue his claims in this action.
In the Prisoner Complaint, Mr. Tillery alleges due process violations because he is suffering conditions of confinement which impose an “atypical and significant hardship” on him “in relation to the ordinary incidents of prison life.” Specifically, Mr. Tillery alleges that as a sex offender he must progress in a treatment program before he will be released on parole, but that the Colorado Department of Corrections (CDOC) has him incarcerated in a facility that does not offer the treatment program, known as SOTMP. He alleges that CDOC will not transfer prisoners to other facilities for the purpose of treatment. Therefore, he and other prisoners who are in need of SOTMP but are housed in SCF will never be eligible for parole.
Mr. Tillery asserts that Defendant Raemisch has violated his due process rights because he is responsible for the promulgation and approval of CDOC Administrative Regulations. Those Administrative Regulations arbitrarily impose significant and atypical hardship on him by denying him parole eligibility.
As to Defendant Warden John Chapdelaine, who is currently responsible for the custody and control of the prisoners in SCF, and Defendant Warden James Falk, who was responsible for the custody and control of the prisoners in SCF from 2012 until 2015, Plaintiff alleges they violated his due process rights by not transferring him to a facility that offers SOTMP, as well as not implementing SOTMP in his facility.
Additionally, Plaintiff alleges that the following people violated his due process rights by not transferring him to a facility that offers SOTMP.
• Case Manager Robert Dick, who is responsible for managing the program needs of prisoners in SCF.
• Jamie Soucie, who is the Health Services Administrator for SCF, and the former SOTMP Administrator of SCF. She was responsible for the administrator of SOTMP until mid-2015 and was responsible for admitting prisoners to SOTMP.
• Leonard Woodson III, who is the Director of SOTMP for CDOC. He is responsible for the administration of SOTMP in the CDOC, including admitting prisoners to SOTMP.
• Barry Johnson, who is the Director of Mental Health at Sterling Correctional Facility. He is responsible for managing the mental health needs of prisoners in SCF.
Plaintiff requests transfer to a facility that offers SOTMP, as well as additional declaratory and monetary relief.
A. Eleventh Amendment
Mr. Tillery does not indicate whether he is suing the Defendants in their official capacities, their individual capacities, or both. (ECF No. 1 at 19). The Court construes the complaint as filed against the Defendants in both their official and their individual capacities. Claims against state officials in their official capacities for monetary damages are construed as claims asserted against the State of Colorado, see Hafer v. Melo, 502 U.S. 21, 25 (1991), and are barred by the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 169-70 (1985). However, to the extent the Complaint asserts a cognizable claim for relief under § 1983, Plaintiff is not precluded from seeking prospective injunctive relief against the individual Defendants in their official capacities. See Ex Parte Young, 209 U.S. 123 (1908); see also Branson Sch. Dist. RE-82 v. Romer, ...