United States District Court, D. Colorado
ORDER TO AMEND
Gordon P. Gallagher United States Magistrate Judge
Plaintiff, Lazaro Aguilar, a pro se prisoner litigant, has submitted a Prisoner Complaint (ECF No. 1) and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 2). He has been granted leave to proceed in forma pauperis. (ECF No. 4).
The court must construe the Prisoner Complaint liberally because Mr. Aguilar 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 reasons discussed below, Mr. Aguilar will be ordered to file an amended complaint if he wishes to pursue his claims in this action.
Plaintiff asserts three claims for relief pursuant to 42 U.S.C. § 1983, all based on alleged violations of his Eighth and Fourteenth Amendment rights. He also requests court appointed counsel. His request for appointment of counsel is denied as premature.
In his first claim, he alleges that in August of 2015, he was not provided with hygiene kids for three days and was left to clean himself with nothing other than water. He was also denied hygiene kits in September of 2015 for a period of five days and in October 2015 for a period of seven days. He seeks damages and injunctive relief.
In his second claim, Plaintiff alleges that on October 10, 2015, he handed a prison officer, John Doe, a Lost Laundry AR Form. He later found the AR Form sitting on a table. He filed a grievance arguing that John Doe left the AR Form on the table as retaliation. The Lost Laundry AR Form was based on a missing state-issued knit cap, which Plaintiff lost in June of 2014. Plaintiff has now received another state-issued knit cap, but he was without a cap for two winter seasons. He seeks damages and injunctive relief.
Finally, his third claim is that on September 15, 2105, he was put in punitive segregation and was furnished one orange jumpsuit. The prison does laundry on Sunday and Wednesday nights. Thus, while he was in punitive segregation, on five separate laundry days, he was left naked overnight, and throughout the next day until about 8:30 p.m. He seeks damages and injunctive relief.
A. Colorado Department of Corrections and Sterling Correctional Facility
First, any § 1983 claims against the Colorado Department of Corrections and the Sterling Correctional Facility are barred by the doctrine of Eleventh Amendment immunity. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989).)). "It is well established that absent an unmistakable waiver by the state of its Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by Congress, the amendment provides absolute immunity from suit in federal courts for states and their agencies." Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994). The Colorado Department of Corrections and the Sterling Correctional Facility are agencies of the State of Colorado. The State of Colorado has not waived its Eleventh Amendment immunity, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988), and congressional enactment of 42 U.S.C. § 1983 did not abrogate Eleventh Amendment immunity, see Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1195-96 (10th Cir. 1998). Accordingly, the Colorado Department of Corrections and the Sterling Correctional Facility are not proper parties to this action and should not be named as Defendants in the Amended Complaint.
B. Claim One: Hygiene Kits and Claim Three: Forced to Be Naked on Five Separate Laundry Days
Next, Plaintiff’s first and third claims both appear to allege Eighth amendment conditions of confinement violations. In claim one, Plaintiff alleges he was denied hygiene kits on numerous occasions, lasting for three days, five days, and seven days. Claim three alleges that while he was housed in punitive segregation, he only had one orange jumpsuit and he was forced to go naked when it was being washed, which happened five times.
A prisoner claiming that he has been subjected to cruel and unusual punishment based on the conditions of his confinement must demonstrate, in part, that the infringement was sufficiently serious. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "[E]xtreme deprivations are required to make out a conditions-of-confinement claim." Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The Eighth Amendment is not violated unless the conditions deprive a prisoner of the "'minimal civilized measure of life's necessities.'" Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). The core areas entitled to protection pursuant to the Eighth Amendment include food, shelter, sanitation, personal safety, medical care, and adequate clothing. See Clemmons v. Bohannon, 956 F.2d 1523, 1527 (10th Cir. 1992). Finally, an inmate asserting an Eighth Amendment claim must allege that the defendants acted with deliberate indifference. Deliberate indifference means that "a prison official may be held liable . . . only if he knows that inmates face a substantial risk of serious harm and ...