United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND DRAW
Lewis T. Babcock,
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 an Amended 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. 10).
Mr. James has been granted leave to proceed in forma pauperis. (ECF No. 4). Therefore, the Court must dismiss the action if Mr. James’ claims are frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). The Court will dismiss the action in part as legally frivolous.
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.
I. Amended Complaint
In his Amended Complaint, Plaintiff alleges three claims based on Eighth Amendment violations: (1) excessive force; (2) deliberate indifference to medical needs; and (3) being labeled a “snitch.” He seeks damages and injunctive relief.
A. Claim One: Excessive Force
Plaintiff alleges that on or about October 21, 2015, he cut his wrists and asked to see Defendant Zohn, the prison psychologist, due to suicidal urges. On or about October 22, 2015, Plaintiff’s cellmate set a fire in the cell, which caused Plaintiff to inhale a lot of smoke. After 30 minutes, Defendants Hamaker and Armijo placed Plaintiff in the SHU recreation yard, where Plaintiff climbed 15 feet in the air with a noose around his neck and asked to see Zohn for an assessment. Hamaker and Armijo returned 2 hours later and told Plaintiff that “Zohn really doesn’t care.” Armijo summoned a use of force team to extract Plaintiff from the recreation yard and return him to his cell.
Later, Plaintiff alleges “they” returned to supply a mattress and upon entering the cell they began striking Plaintiff with closed fists in the head and body causing a mild concussion and bruises all over his body. Plaintiff remained in pain for 10 days.
Approximately a week later, on or about October 29, 2015, Plaintiff knelt in his food port and asked Defendant Robb to see Internal Affairs to report the assault by prison officials on October 22nd and, in response, Defendant Robb sprayed the Plaintiff in the eyes with OC (pepper) spray and walked away. Plaintiff suffered severe pain.
Mr. James was warned in the Court’s previous Order that in order to state a claim in federal court, he "must explain what each defendant did to him or her; when the defendant did it; how the defendant’s action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated." (ECF No. 9 (citing Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007)). Despite this instruction, the Amended Complaint fails to identify the prison official Plaintiff complained to on or about October 21, 2015 after he cut his wrists and asked for medical care. Likewise, when Mr. James alleges that “they” returned to his cell and began striking him with closed fists, he never specifies who “they” are. As a result of the failure to allege personal participation by any Defendants in those allegations, those claims of alleged excessive force will be dismissed.
Mr. James’ also alleges that when he knelt into his food port and asked Defendant Robb to see Internal Affairs to report an instance of alleged excessive force, Defendant Robb sprayed him in the eyes with OC (pepper) spray and walked away. Mr. James’ claim based on these factual allegations will be drawn to a presiding judge and, if applicable, a magistrate judge.
B. Claim Two: Deliberate Indifference to Medical Needs
Plaintiff alleges in claim two that following the events on October 22, 2015 and October 29, 2015, Plaintiff asked Defendants Hamaker, Armijo, Robb, Anthony, Morris, and Earwin for medical treatment. Plaintiff asked for medical treatment for seven straight days. Each defendant refused to call or ...