Opinion
CIV-18-22-G
12-10-2018
VICTOR EUGENE JOSEPH, Plaintiff, v. HECTOR RIOS, JR., Defendant.
REPORT AND RECOMMENDATION
Plaintiff, an inmate proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Having reviewed the sufficiency of the Amended Complaint pursuant to 28 U.S.C. § 1915A and 1915(e)(2)(B), the undersigned recommends the action be dismissed without prejudice.
I. Background
Plaintiff, currently incarcerated in Lawton Correctional Facility ("LCF"), initiated this lawsuit on January 8, 2018. Doc. No. 1. On January 9, 2018, the Court directed Plaintiff to, inter alia, submit an amended complaint on a proper 42 U.S.C. § 1983 Complaint form. Doc. No. 7. Plaintiff filed an Amended Complaint on the proper form on January 25, 2018. Doc. No. 8.
On February 6, 2018, following review of Plaintiff's Amended Complaint, the Court concluded Plaintiff was attempting to assert a First Amendment claim based on an alleged interference with his right of access to courts and a Fourteenth Amendment claim based on an alleged denial of due process. See generally Doc. No. 12. However, Plaintiff had not set forth sufficient allegations to support a plausible constitutional claim. Id. at 2-5. The Court explained the pleading requirements of Fed. R. Civ. P. 8 as well as the elements and requirements for the First and Fourteenth Amendment claims he was attempting to assert. Id. at 1-5. The Court then provided Plaintiff an opportunity to file a second amended pleading setting forth a plausible constitutional claim. Id. at 5-6. On February 27, 2018, Plaintiff filed the Second Amended Complaint currently before the Court. Doc. No. 19 ("Sec. Am. Comp.").
In his Second Amended Complaint, Plaintiff names only Hector Rios, Jr., former LCF warden, as a Defendant and asserts claims under the First, Eighth, and Fourteenth Amendments. Id. at 4, 6-10. On September 24, 2018, this Court issued an Order explaining that personal participation is necessary for individual liability under § 1983. Doc. No. 41 at 2-4 (citing Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976)). In his Second Amended Complaint, Plaintiff does not indicate Defendant Rios personally participated in the events underlying his claims. See generally Sec. Am. Comp. The Court stated that in order to set forth a viable claim, Plaintiff must clearly allege and name as defendants the parties he contends personally violated his constitutional rights. Doc. No. 41 at 4 (citing Trujillo v. Williams, 465 F.3d 1210, 1227-28 (10th Cir. 2006)). The Court provided Plaintiff an opportunity to submit a Third Amended Complaint, no later than October 24, 2018, to cure the identified deficiencies and adequately assert a constitutional claim. Id. Plaintiff failed to do so.
The undersigned notes Plaintiff submitted an additional amended pleading on June 7, 2018. Doc. No. 31. The Court entered an Order striking this amended pleading based on unrelated, procedural reasons. See Doc. No. 34. However, the undersigned notes that in the June 7, 2018 pleading, Plaintiff named only Defendant Rios and again failed to allege adequate personal participation to support his constitutional claims. See generally Doc. No. 31. Thus, consideration of the stricken pleading would not save Plaintiff's claims asserted herein.
On October 29, 2018, the Court issued an Order to Show Cause giving Plaintiff until November 29, 2018, to show cause why this case should not be dismissed without prejudice based on Plaintiff's failure to state a claim upon which relief can be granted. Doc. No. 42. The Court also explained that Plaintiff's failure to do so would result in a recommendation to dismiss this action without further notice. Id. at 2. To date, Plaintiff has failed to respond to the Court's Order.
II. Analysis
Although Plaintiff's pro se pleadings must be liberally construed, his pro se status does not excuse him from complying with the fundamental requirements of the Federal Rules of Civil Procedure. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). In his Second Amended Complaint, Plaintiff purports to assert claims under the Fourteenth Amendment related to the receipt of "gang pay" and the First and Eighth Amendments related to allegedly false write-ups and supporting affidavits resulting in improper security classifications. Sec. Am. Comp. at 4, 6-10. As explained in the Court's previous order, personal participation is necessary for individual liability under § 1983. See Bennett, 545 F.2d at 1262-63 ("Personal participation is an essential allegation in a § 1983 claim.").
Plaintiff does not indicate Defendant Rios personally participated in the events underlying his First and Eighth Amendment claims. Sec. Am. Comp. at 6, 8-10. Further, with regard to his Fourteenth Amendment claim, Defendant Rios's actions appear to be limited to the transfer of grievance requests. Id. at 4, 6-7. Thus, Plaintiff's allegations against Defendant Rios appear to be based not on Defendant Rios's own actions but, at most, solely on his supervisory status as Warden. Although a supervisor may be held liable if he is affirmatively linked to a constitutional violation, "Section 1983 does not authorize liability under a theory of respondeat superior." Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011). As a result, government officials have no vicarious liability in a §1983 suit for the misconduct of their subordinates because "there is no concept of strict supervisor liability under section 1983." Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996) (quotations omitted). Instead, a supervisor is liable only if he is "personally involved in the constitutional violation, and a sufficient causal connection [] exist[s] between the supervisor and the constitutional violation." Serna v. Colo. Dep't of Corr., 455 F.3d 1146, 1151 (10th Cir. 2006) (quotations omitted); see also Schneider v. Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013) (requiring a plaintiff to show an "affirmative link" between the supervisor and the constitutional violation).
Thus, Plaintiff must base supervisory liability "'upon active unconstitutional behavior' and 'more than a mere right to control employees.'" Davis v. Okla. Cty., No. CIV-08-0550-HE, 2009 WL 2901180, at *4 (W.D. Okla. Sept. 3, 2009) (quoting Serna, 455 F.3d at 1153). Plaintiff's allegations are wholly insufficient to establish supervisory liability against Defendant Rios. Plaintiff fails to allege any affirmative link between Defendant Rios and his allegations. He does not indicate Defendant Rios was even aware of, much less involved with, issues surrounding Plaintiff's write-ups. Sec. Am. Comp. at 8-10. Moreover, with regard to his Fourteenth Amendment claim, Plaintiff only alleges Defendant Rios transferred his grievance requests related to the receipt of gang pay to third parties. Id. at 6-7. Even the denial of grievances does not provide a sufficient basis for a constitutional violation claim. Larson v. Meek, 240 F. App'x 777, 780 (10th Cir. 2007) ("[D]enial of [] grievances alone is insufficient to establish personal participation in the alleged constitutional violations.").
In spite of multiple opportunities to cure the deficiencies discussed above, Plaintiff has named only Defendant Rios as a Defendant in this matter and does not set forth factual allegations indicating Defendant Rios personally participated in the constitutional violations Plaintiff sets forth herein. Therefore, Plaintiff's claims should be dismissed without prejudice based on failure to state a claim upon which relief can be granted.
RECOMMENDATION
Based upon the foregoing, the undersigned recommends Plaintiff's claims be dismissed without prejudice for failure to state a claim upon which relief can be granted. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by January 2, 2019, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
Dated this 10th day of December, 2018.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE