Julien v. Raemisch
Decision Date | 02 December 2015 |
Docket Number | Civil Action No. 15-cv-01835-GPG |
Parties | DYWAND DAYTRON JULIEN, Plaintiff, v. RICK RAEMISCH, BRANDON SHAFFER, MARY CARLSON, ANGELA BRUBAKER, JASON LENGERICH, ALISON MORGAN, RAOUL MAZE, DANIEL BARONI, SIMON DENWALT, and R.E. HAZEN, Defendants. |
Court | U.S. District Court — District of Colorado |
Plaintiff, Dywand Daytron Julien, was in the custody of the Colorado Department of Corrections (CDOC) at the Buena Vista Correctional Facility when he initiated this action by filing, pro se, a Prisoner Complaint asserting a violation of his constitutional rights pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983.
On September 22, 2015, Magistrate Judge Gordon P. Gallagher reviewed the Complaint and determined that it was deficient for several reasons. Specifically, Magistrate Judge Gallagher found that Plaintiff did not comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure; improperly sought a judgment for damages against the individual Defendants, sued in their official capacities; failed to allege the personal participation of each named Defendant in an alleged constitutional deprivation; and failed to state an arguable due process claim. Magistrate Judge Gallagher ordered Plaintiff to file an amended complaint within 30 days of the September 22 Order. Plaintiff did not file an amended complaint within the time allowed.
Plaintiff has been granted leave to proceed under the federal in forma pauperis statute, 28 U.S.C. § 1915. Pursuant to § 1915(e)(2)(B)(i), the Court must dismiss the action if Plaintiff's claims are frivolous or malicious. 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). Subsection (e)(2)(B)(iii) of § 1915 requires a court to dismiss at any time an action that seeks monetary relief against a defendant who is immune from such relief.
The Court must construe the original 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 should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, this action will be dismissed pursuant to § 1915(e)(2)(B)(iii).
In the Complaint, Plaintiff asserts the following four claims:
As relief, Plaintiff seeks compensatory and nominal damages as well as punitive damages. (Id. at 15).
Plaintiff sues the individual Defendants in their official capacities. Therefore, the claims, which are asserted against State employees, are construed as against the State of Colorado. See Hafer v. Melo, 502 U.S. 21, 25 (1991) ( ). The State and its officers or agents sued in their official capacities are entitled to Eleventh Amendment immunity, absent a waiver. See generally Meade v. Grubbs, 841 F.2d 1512, 1525 (10th Cir. 1988) ( ); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102-03 (1984) ( ). Congress did not abrogate Eleventh Amendment immunity through § 1983, see Quern v. Jordan, 440 U.S. 332, 345 (1979), nor has the State of Colorado or the CDOC expressly waived its sovereign immunity. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988). As a result, Plaintiff cannot obtain a judgment for damages against the individual Defendants, sued in their official capacities. Because Plaintiff only seeks money damages against the individual Defendants, sued in their official capacities, the claims are barred by Eleventh Amendment immunity.
Moreover, Plaintiff's factual allegations fail to demonstrate the personal involvement of each named Defendant. Plaintiff was warned in the September 22 Order that 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 constitutionalviolation 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) ().
In the Complaint, Plaintiff alleges that the Defendants have enacted "a custom and policy" that violates Plaintiff's constitutional rights....
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