Opinion
Civil Action No. 06-cv-01813-BNB.
November 16, 2006
ORDER TO FILE AMENDED COMPLAINT AND TO SHOW CAUSE
Plaintiff, Donald E. Nelson, is a prisoner in the custody of the United States Bureau of Prisons (BOP) who has notified the Court that he currently is incarcerated in Sallis, Mississippi. While he was an inmate in the Federal Prison Camp in Marion, Illinois (FPC-Marion), he filed pro se a civil rights complaint for money damages pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971), and 28 U.S.C. § 1331 (1993), alleging that the defendants have violated his rights under the United States Constitution.
In an order entered on September 6, 2006, the United States District Court for the Southern District of Illinois transferred the action to this Court. Mr. Nelson has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (Supp. 2006).
The Court must construe the complaint liberally because Mr. Nelson is representing himself. 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 the pro se litigant's advocate. Hall , 935 F.2d at 1110. For the reasons stated below, Mr. Nelson will be ordered to file an amended complaint and to show cause why the complaint should not be dismissed for failure to exhaust the BOP's three-step, administrative-grievance procedure as to the asserted claims.
Mr. Nelson alleges that on February 20, 2004, he was transferred from the FPC-Marion to the Federal Prison Camp in Florence, Colorado (FPC-Florence) to participate in the Residential Drug Abuse Program (RDAP) there, and that the defendants have conspired to deny him access to the RDAP.
Mr. Nelson fails to make factual allegations demonstrating each defendant's personal participation in the alleged constitutional violations. Personal participation is an essential allegation in a civil rights action. See Bennett v. Passic , 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal participation, the plaintiff 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 (10th Cir. 1993). A defendant may not be held liable 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 (10th Cir. 1983).
It also appears that Mr. Nelson has failed to exhaust his claims through the BOP's grievance system. Pursuant to 42 U.S.C. § 1997e(a) (Supp. 2006), "[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." An inmate must exhaust administrative remedies before seeking judicial relief regardless of the relief sought and offered through administrative procedures, see Booth v. Churner , 532 U.S. 731, 739 (2001), and regardless of whether the suit involves general circumstances or particular episodes. See Porter v. Nussle , 534 U.S. 516, 532 (2002).
Mr. Nelson is a prisoner confined in a correctional facility. The claims he asserts relate to prison conditions. Therefore, he must exhaust the available administrative remedies. Furthermore, 42 U.S.C. § 1997e(a) "imposes a pleading requirement on the prisoner." Steele v. Fed. Bureau of Prisons , 355 F.3d 1204, 1210 (10th Cir. 2003). To satisfy the burden of pleading exhaustion of administrative remedies, Mr. Nelson must "either attach copies of administrative proceedings or describe their disposition with specificity." Id. at 1211. Finally, § 1997e(a) imposes a total exhaustion requirement on prisoners. See Ross v. County of Bernalillo , 365 F.3d 1181, 1189 (10th Cir. 2004). Therefore, if Mr. Nelson has failed to exhaust administrative remedies for any one of his claims, the entire complaint must be dismissed. The steps one, two, and three grievances and responses attached to the complaint demonstrate that Mr. Nelson's efforts to exhaust administrative remedies were directed toward the denial of his eligibility to participate in the RDAP at the FPC-Florence. They do not address the claims he asserts here, i.e., that the defendants have conspired to deny him access to the RDAP. Therefore, Mr. Nelson will be ordered to show cause why the complaint should not be dismissed for failure to exhaust the BOP's three-step, administrative-grievance procedure as to his asserted claims.
Finally, Mr. Nelson is advised that he must provide sufficient copies of the amended complaint to serve each named defendant. The Court will not make the copies necessary for service. Therefore, Mr. Nelson should review his claims carefully to ensure that each named defendant personally participated in the asserted constitutional violations. Accordingly, it is
ORDERED that Mr. Nelson file within thirty (30) days from the date of this order an amended complaint that complies with the directives in this order and that shows cause why the complaint should not be dismissed for failure to exhaust the United States Bureau of Prisons' three-step, administrative-grievance procedure as to his asserted claims. It is
FURTHER ORDERED that the amended complaint shall be titled "Amended Prisoner Complaint," and shall be filed with the clerk of the Court, United States District Court for the District of Colorado, Alfred A. Arraj United States Courthouse, 901 Nineteenth Street, A105, Denver, Colorado 80294. It is
FURTHER ORDERED that the clerk of the Court mail to Mr. Nelson at his new address in Sallis, Mississippi, together with a copy of this order, two copies of the following form to be used in submitting the amended complaint: Prisoner Complaint. It is
FURTHER ORDERED that Mr. Nelson submit sufficient copies of the amended complaint to serve each named defendant. It is
FURTHER ORDERED that, if Mr. Nelson fails to comply with this order to the Court's satisfaction within the time allowed, the complaint and the action will be dismissed without further notice.