United States District Court, D. Colorado
SCOTT A. SOLLIS, Plaintiff,
RICK RAEMISCH, and LT. CONTES, Defendants.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior Judge
Plaintiff, Scott A. Sollis, is a prisoner in the custody of the Colorado Department of Corrections, currently incarcerated at the Colorado State Penitentiary in Canon City, Colorado. Mr. Sollis has filed pro se an Amended Prisoner Complaint (ECF No. 11) asserting one claim for relief pursuant to 42 U.S.C. § 1983. He seeks injunctive relief and legal costs. Mr. Sollis has paid the filing fee in full. (ECF No. 4).
The court must construe the Amended Prisoner Complaint liberally because Mr. Sollis 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.
Pursuant to 28 U.S.C. § 1915A, the Court must review the Amended Prisoner Complaint because Mr. Sollis is a prisoner and he is seeking redress from officers or employees of a governmental entity. Pursuant to § 1915A(b), the Court is required to dismiss the Amended Prisoner Complaint, or any portion of the Amended Prisoner Complaint, that is frivolous or that seeks monetary relief from a defendant who is immune from such relief. 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, 324 (1989). For the reasons stated below, the Court will dismiss the Amended Prisoner Complaint as legally frivolous pursuant to § 1915A(b).
I. The Amended Prisoner Complaint
According to Plaintiff, on or about January 8th, while he was on suicide watch as a result of anxiety and depression due to threats and bullying in the facility, he met with Defendant Lt. Contes, who told Plaintiff she was his programmer and they were meeting in the multi-purpose room to do his required programming. Mr. Sollis asserts that Lt. Contes did not do a full assessment with Plaintiff. According to Plaintiff, during the meeting he notified Lt. Contes about safety concerns, including telling her names of enemies and a specific threat group. Plaintiff alleges that in the middle of him telling her about the safety concerns, she stopped him and told him he was going to a minimum restricted facility.
Mr. Sollis also alleges that he filed a grievance, apparently about Lt. Contes and the lack of protective custody, but he only received a response to the grievance after he filed this action. In the grievance response, Lt. Contes stated that she had informed Plaintiff how to obtain the protective custody form. Plaintiff asserts that Lt. Contes never informed him of how to obtain the form.
Plaintiff claims that Lt. Contes’ failure to complete a full assessment, failure to provide plaintiff with the protective custody form, and knowingly giving him false programming information about his custody level constitutes a due process violation under the 14th and 5th Amendments as well as an equal protection violation. Plaintiff also claims that Defendant Rick Raemisch is the highest authority in the Colorado Department of Corrections and, therefore, is responsible for policy, written and/or unwritten, and is responsible for Lt. Contes’ conduct.
A. Personal Participation
Initially, the Court notes that Plaintiff’s factual allegations fail to demonstrate the personal involvement of Defendant Raemisch. Personal participation is an essential element in a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); Kentucky v. Graham, 473 U.S. 159, 166 (1985). There must be an affirmative link between the alleged constitutional violation and each defendant’ s participation, control or direction, or failure to supervise. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (citations and quotations omitted); Dodds v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir. 2010). A supervisor can only be held liable for his own deliberate intentional acts. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Serna v. Colo. Dep’ t of Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006) (“Supervisors are only liable under § 1983 for their own culpable involvement in the violation of a person's constitutional rights.”). Plaintiff fails to allege that Defendant Raemisch was personally involved in the alleged constitutional violations. Instead, Plaintiff seeks to hold Defendant Raemisch liable based on his supervisory status, which is improper under § 1983. Therefore, Defendant Raemisch is dismissed as a party from this action.
B. Alleged Constitutional Violation
The court liberally construes Mr. Sollis’ claim as an Eighth Amendment claim because “the Eighth Amendment . . . serves as the primary source of substantive protection to convicted prisoners.” Whitley v. Albers, 475 U.S. 312, 327 (1986). In order to state an arguable Eighth Amendment claim, Mr. Sollis must allege facts that demonstrate deliberate indifference to a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825 (1994); Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008). Deliberate indifference means that an official “may be held liable . . . only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 847.
Prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care, and must "take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984)). A claim of failure to protect under the Eighth Amendment has "both an objective and a subjective component." Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). The objective component of the test is met if the harm suffered is "sufficiently serious" to implicate the Cruel and ...