Opinion
No. 06-cv-00699-BNB.
July 13, 2006
ORDER TO DISMISS IN PART AND TO DRAW CASE TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE
Plaintiff Linda Salmen is in the custody of the Colorado Department of Corrections and currently is housed at the Denver, Colorado, Women's Correctional Facility. On April 4, 2006, Ms. Salmen submitted to the Court a pro se Prisoner Complaint pursuant to 42 U.S.C. § 1983. Magistrate Judge Boyd N. Boland reviewed the Complaint and entered an order on May 15, 2006, directing Plaintiff to amend and assert personal participation by each named Defendant. Plaintiff filed an Amended Complaint on June 14, 2006.
The Court must construe the Amended Complaint liberally, because Ms. Salmen is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If a complaint reasonably can be read "to state a valid claim on which the plaintiff could prevail, [a court] should do so despite the plaintiff's failure to cite proper legal authority, [her] confusion of various legal theories, [her] poor syntax and sentence construction, or [her] unfamiliarity with pleading requirements." Hall, 935 F.2d at 1110. However, a court should not act as a pro se litigant's advocate. See id.
As noted above, Magistrate Judge Boland ordered Ms. Salmen to clarify how each Defendant personally participated in the asserted 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, Ms. Salmen 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 named 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 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 (10th Cir. 1983).
Upon review of both the original Complaint and the Amended Complaint, including attached documents, the Court finds that Ms. Salmen asserts that Defendant Rae Rice failed to provide her with needed medical shoes for over eight months, and as a result she has permanent damage to her right ankle. Plaintiff seeks proper medical care.
Despite Magistrate Judge Boland's directions to allege specific facts that demonstrate how each named Defendant personally participated in the asserted constitutional violations, Ms. Salmen again fails to allege any personal participation by Defendants Dr. Mitra Razzaghi, Randy Smith, and John/Jane Doe. Therefore, because the facts Ms. Salmen asserts do not support arguable claims against Defendants Dr. Razzaghi, Smith, and John/Jane Doe they will be dismissed from the action.
To the extent Plaintiff claims that Defendant Rice failed to address her medical needs, the claim against Defendant Rice will be drawn to a district judge and to a magistrate judge. Accordingly, it is
ORDERED that Defendants Dr. Mitra Razzaghi, Randy Smith, and John/Jane Doe are dismissed as parties to this action. It is
FURTHER ORDERED that the Clerk of the Court shall remove Defendants Dr. Mitra Razzaghi, Randy Smith, and John/Jane Doe from the docket as parties to the action. It is
FURTHER ORDERED that the case and the claim alleged against remaining Defendant Rae Rice shall be drawn to a district judge and to a magistrate judge.