Galbraith v. Correctional Healthcare

Full title: STEVEN A. GALBRAITH, Plaintiff, v. CORRECTIONAL HEALTHCARE, Administrative…

Court: United States District Court, D. Colorado

Date published: Nov 7, 2005

Civil Action No. 05-cv-02068-OES (D. Colo. Nov. 7, 2005)

Opinion

Civil Action No. 05-cv-02068-OES.

November 7, 2005

EDWARD SCHLATTER, Magistrate Judge

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff Steven A. Galbraith is a prisoner in the custody of the Colorado Department of Corrections at the Crowley County Correctional Facility at Olney Springs, Colorado. Mr. Galbraith has filed pro se a Prisoner Complaint pursuant to 42 U.S.C. § 1983 alleging that Defendants violated his rights under the United States Constitution while he was incarcerated at the El Paso County Jail. The court must construe the complaint liberally because Mr. Galbraith is representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10^th Cir. 1991). However, the court should not be the pro se litigant's advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, Mr. Galbraith will be ordered to file an amended complaint.

The court has reviewed the complaint filed in this action and finds that it is deficient. First, it is not clear exactly who the first named Defendant in this action is. It is not clear whether the first named Defendant is an entity or one or more unidentified individuals employed by that entity. The complaint also is deficient because Mr. Galbraith fails to allege facts that demonstrate how each Defendant personally participated in the asserted violations of his rights. Personal participation is an essential allegation in a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10^th Cir. 1976). To establish personal participation, Mr. Galbraith must show that each Defendant caused the deprivation of a federal right. See 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 Butler v. City of Norman, 992 F.2d 1053, 1055 (10^th Cir. 1993). A Defendant may not be held liable on a theory of respondeat superior merely because of his or her supervisory position. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986); McKee v. Heggy, 703 F.2d 479, 483 (10^th Cir. 1983).

Mr. Galbraith will be ordered to file an amended complaint in which he clarifies who he intends to name as Defendants and in which he alleges specific facts to demonstrate how each Defendant personally participated in the asserted constitutional violations. Mr. Galbraith is reminded that 42 U.S.C. § 1983 "provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights." Conn v. Gabbert, 526 U.S. 286, 290 (1999). Therefore, Mr. Galbraith should name as Defendants in the amended complaint the individuals he believes actually violated his rights.

Mr. Galbraith also must clarify in the amended complaint he will be ordered to file how he has exhausted administrative remedies. Pursuant to 42 U.S.C. § 1997e(a), "[n]o action shall be brought with respect to prison conditions under . . . any . . . Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." This "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Furthermore, § 1997e(a) "imposes a pleading requirement on the prisoner." Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1210 (10^th Cir. 2003). To satisfy the burden of pleading exhaustion of administrative remedies, Mr. Galbraith must "either attach copies of administrative proceedings or describe their disposition with specificity." Id. at 1211.

Mr. Galbraith does not attach to the complaint copies of any administrative proceedings and he fails to allege with specificity how he exhausted administrative remedies. He alleges only that he "sent kites to every administrative branch to try to get help" and that he "used every remedy that was offered." (Prisoner Compl. At 8.) He does not explain whether the kites he sent satisfy the grievance procedure available to him, specifically who the kites were sent to, what issues were raised in the kites he sent, whether he completed the grievance procedure, or specifically what other remedies he pursued that were offered to him. Accordingly, it is

ORDERED that Mr. Galbraith file within thirty (30) days from the date of this order an amended complaint that complies with this order. It is

FURTHER ORDERED that the clerk of the court mail to Mr. Galbraith, together with a copy of this order, two copies of the following forms: Prisoner Complaint. It is

FURTHER ORDERED that Mr. Galbraith submit sufficient copies of the amended complaint to serve each named Defendant. It is

FURTHER ORDERED that, if Mr. Galbraith fails within the time allowed to file an original and sufficient copies of an amended complaint that complies with this order to the court's satisfaction, the action will be dismissed without further notice. It is

FURTHER ORDERED that Plaintiff's motion for service of the summons and complaint filed on October 20, 2005, is denied as premature.