IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02401-BNB

CLIFFORD E. LEWIN,

Plaintiff,

v.

WARDEN C. DANIELS, 

CLINIC DIRECTOR ALLRED,

GERALD CHENEY, RN,

JOHN DOE(S) CLINIC DIRECTORS, and 

JOHN DOE(S),

Defendants.

 

ORDER TO DISMISS IN PART AND TO DRAW CASE TO 

DISTRICT JUDGE AND TO UNITED STATES MAGISTRATE JUDGE

Plaintiff, Clifford E. Lewin, is in the custody of the federal Bureau of Prisons

(BOP) and is incarcerated currently at the United States Penitentiary in Florence,

Colorado. He has filed pro se a Complaint asserting a deprivation of his constitutional

rights pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971). Mr. Lewin filed an amended complaint on

October 19, 2011. He has been granted leave to proceed in forma pauperis pursuant to

28 U.S.C. § 1915 and has paid an initial partial filing fee. 

On December 7, 2011, Magistrate Judge Boland found that the amended

complaint was deficient because Mr. Lewin failed to allege the personal participation of

each named defendant. Therefore, Mr. Lewin was directed to file a second amended

complaint within thirty days. Mr. Lewin did not file a second amended complaint by the

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court-ordered deadline. Instead, he filed a “Motion for the Actual Judge to Screen

Plaintiff’s Amended Complaint” (Doc. #20), along with a brief in support (Doc. #22). In

his motion and brief, Mr. Lewin asserts that Magistrate Judge Boland has already

predetermined the case against him, that the facts he alleges in the amended complaint

are sufficient to state constitutional claims against each named Defendant, and that he

does not have any additional facts to add in an amended pleading. Mr. Lewin also filed

a Motion for an Enlargement of Time (Doc. #21) to submit a second amended complaint

after the “actual judge” screens his amended pleading. The Court will deny the motion

for enlargement of time as unnecessary, given Mr. Lewin’s statements in Doc. #20 that

he has no further factual allegations to support his claims. The Court will therefore

address below the sufficiency of the amended complaint (Doc. #11), filed on October

19, 2011.

The Court finds initially that Mr. Lewin fails to allege any specific facts in Doc.

Nos. 20 and 22 to show that Magistrate Judge Boland is biased against him and should

recuse himself from this case. See generally 28 U.S.C. § 144; 28 U.S.C. § 455(a); see

also Liteky v. United States, 510 U.S. 540, 555 (1994) (“judicial rulings alone almost

never constitute a valid basis for a bias or partiality motion.”). 

The Court must construe the amended complaint liberally because Mr. Lewin 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). If the amended complaint

reasonably can be read “to state a valid claim on which the plaintiff could prevail, [the

Court] should do so despite the plaintiff’s failure to cite proper legal authority, his

confusion of various legal theories, his poor syntax and sentence construction, or his

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unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, the Court

should not be an advocate for a pro se litigant. See id.

Pursuant to 28 U.S.C. § 1915A, the Court is required to review the amended

complaint because Mr. Lewin is a prisoner and he is seeking redress from officers or

employees of a governmental entity. Pursuant to § 1915A(b)(1), the Court is required to

dismiss the amended complaint, or any portion thereof, that is frivolous. 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, 324 (1989). For the reasons stated below, the

amended complaint and the action will be dismissed in part. 

Mr. Lewin alleges in his amended complaint that he injured his finger while

incarcerated at USP-Victorville, California. On August 13, 2010, he presented to

Defendant Nurse Cheney at USP-Victorville with a severely bruised finger, and

indicated that he thought the finger was broken. Plaintiff alleges that Defendant Cheney

refused to x-ray his finger, even though Cheney’s brief examination revealed that it

might be broken. On December 10, 2010, Mr. Lewin was transferred to USP-Florence,

Colorado. He requested an operation on his finger because the black bruises had not

healed. USP-Florence medical personnel x-rayed Mr. Lewin’s finger on December 29,

2010, but did not advise him of the results. Mr. Lewin alleges that his repeated requests

for an operation have been denied. He further states that the USP-Florence hospital

administrator told him that the standard for determining whether surgery will be

authorized on an inmate’s hand or arm is based on whether the inmate is able to dress

himself. Mr. Lewin asserts that Defendant Allred, who approves and schedules all

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medical operations at USP-Florence, has deprived him of adequate medical care in

violation of his Eighth Amendment rights. Mr. Lewin alleges that his finger remains

swollen to twice its normal size and that the tendons do not function properly, making it

difficult to complete tasks. He asserts that he is gradually losing sensation in his finger

and eventually his finger will be crippled permanently. Plaintiff further states that he

experiences constant soreness in the muscle group that controls the main tendon in the

crippled finger. Mr. Lewin requests injunctive and monetary relief. 

Mr. Lewin cannot proceed with his constitutional claims against Defendant

Warden Daniels. Mr. Lewin alleges that Defendant Daniels is liable for the asserted 

constitutional deprivations because he is obligated to provide all inmates with adequate

medical care. Mr. Lewin also complains that Defendant Daniels ignored his

administrative remedy requests concerning medical personnel’s refusal to operate on

his injured finger. 

Mr. Lewin was warned previously by Magistrate Judge Boland that personal

participation by the named defendants is an essential allegation in a civil rights action. 

See Kite v. Kelley, 546 F.2d 334, 338 (1976). Mr. Lewin therefore must show that each

named Defendant caused the deprivation of a federal right. See Kentucky v. Graham,

473 U.S. 159, 166 (1985); Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). 

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); see also Richardson, 614 F.3d at

1200-1201 (“[D]efendant-supervisors may be liable under § 1983 [or Bivens] where an

‘affirmative’ link exists between the unconstitutional acts by their subordinates and their

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‘adoption of any plan or policy. . .–express or otherwise–showing their authorization or

approval of such ‘misconduct.’”) (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)). A

supervisor cannot 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). This is because “§ 1983 does not recognize a concept of

strict supervisor liability; the defendant’s role must be more than one of abstract

authority over individuals who actually committed a constitutional violation.” Fogarty v.

Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008). 

Moreover, the Tenth Circuit has held that “a denial of a grievance, by itself

without any connection to the violation of constitutional rights alleged by plaintiff, does

not establish personal participation under § 1983.” Gallagher v. Shelton, 587 F.3d 1063,

1069 (10th Cir. 2009); see also Whitington v. Ortiz, 307 Fed. App’x. 179, 193 (10th Cir.

2009) (unpublished). 

Mr. Lewin has failed to allege an affirmative link between the alleged

constitutional violations and Defendant Daniels. Because Mr. Lewin does not state any

facts to show that Defendant Daniels personally participated in the alleged deprivation

of his constitutional rights, Defendant Daniels is an improper party to this action and will

be dismissed. 

In addition, this Court is not the proper venue to adjudicate Mr. Lewin’s claims

against Defendant Cheney, a prison nurse at USP-Victorville, California, because Mr.

Cheney resides outside the State of Colorado and the alleged unconstitutional conduct

involving Mr. Cheney occurred outside of Colorado. Under 28 U.S.C. § 1391,

paragraph (b) states:

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A civil action wherein jurisdiction is not founded solely on

diversity of citizenship may, except as otherwise provided by

law, be brought only in (1) a judicial district where any

defendant resides, if all defendants reside in the same State,

(2) a judicial district in which a substantial part of the events

or omissions giving rise to the claim occurred, or a

substantial part of property that is the subject of the action is

situated, or (3) a judicial district in which any defendant is

subject to personal jurisdiction at the time the action is

commenced, if there is no district in which the action may

otherwise be brought.

Therefore, the claim is not properly before this Court and is subject to sua sponte

dismissal. See Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006). Alternatively,

the Court may exercise its discretion to cure jurisdictional and venue defects by

transferring claims to a district where venue is proper, if such a transfer is in the interest

of justice. Id. at 1222-23 (citing 28 U.S.C. §§ 1406(a) and 1631). The Court declines to

transfer the claims in lieu of dismissal because Mr. Lewin’s sole allegation that

Defendant Cheney failed to x-ray his finger during a brief examination constitutes a

mere difference in opinion about the course of medical treatment Plaintiff received at

USP-Vicksburg, particularly where Mr. Lewin was subsequently transferred to U.S.P.-

Florence and received an x-ray at that facility. See Perkins v. Kansas Dep't of

Corrections, 165 F.3d 803, 811 (10th Cir. 1999). Accordingly, Defendant Cheney will be

dismissed as a party to this action for lack of proper venue. 

 Upon completion of the Court’s review pursuant to D.C.COLO.LCivR 8.2C, the

Court has determined that Mr. Lewin’s claims against Defendant Allred and the John

Doe Defendants do not appear to be appropriate for summary dismissal and that the

case should be drawn to a district judge and to a magistrate judge. See

D.C.COLO.LCivR 8.2D. Accordingly, it is

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ORDERED that Defendant Warden Daniels is dismissed as a party to this action

for Plaintiff’s failure to allege his personal participation. It is

FURTHER ORDERED that Plaintiff’s claims against Defendant Gerald Cheney

are dismissed without prejudice for improper venue. It is 

FURTHER ORDERED the Motion for an Enlargement of Time (Doc. #17),

“Motion for the Actual Judge to Screen Plaintiff’s Amended Complaint. . .” (Doc. #20)

and Motion for an Enlargement of Time (Doc. #21) are DENIED. It is 

FURTHER ORDERED that this case shall be drawn to a district judge and to a

magistrate judge.

DATED at Denver, Colorado, this 24th day of January , 2012.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

 

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