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 DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

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. 

The Court will 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. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act

as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. The Court has

reviewed the amended complaint and has determined that it is deficient. Mr. Lewin

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therefore will be directed to file a second amended complaint for the reasons discussed

below. 

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 Plaintiff’s finger, even though Cheney’s examination revealed that it might be

broken. On December 10, 2010, Mr. Lewin arrived via transfer to USP-Florence,

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

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

2010, but Plaintiff was not advised of the results. Mr. Lewin alleges that his repeated

requests for an operation have been denied. He asserts that Defendant Allred, who

approves and schedules all medical operations at USP-Florence, has denied him

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 alleges that he is gradually

losing sensation in his finger and that in time his finger will be crippled permanently. 

Plaintiff further alleges that he now 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’s Eighth Amendment claim is deficient because he fails to allege facts

to show the personal participation of Defendant Warden Daniels in a violation of his

constitutional rights. Mr. Lewin is advised that personal participation by the named

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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). A supervisor, such as Warden Daniels, 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). A supervisor is only

liable for a constitutional violation that he or she has caused. See Dodds v.

Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). Accordingly, 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 ‘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)). 

Mr. Lewin is further advised that the Court lacks proper venue to review his claim

asserted 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, the statute that provides for venue, paragraph (b) states that:

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,

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(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). 

Finally, Mr. Lewin may use fictitious names, such as Jane or John Doe, if he

does not know the real names of the individuals who allegedly violated his rights. 

However, if Mr. Lewin uses fictitious names he must provide sufficient information about

each defendant so that each defendant can be identified for purposes of service. 

Accordingly, it is

 ORDERED that Plaintiff, Clifford Lewin, file within thirty (30) days from the

date of this order, a second amended complaint on the court-approved Prisoner

Complaint form that complies with the directives in this Order. It is

FURTHER ORDERED that Mr. Lewin shall obtain the court-approved Prisoner

Complaint form (with the assistance of his case manager or the facility’s legal assistant),

along with the applicable instructions, at www.cod.uscourts.gov. It is

FURTHER ORDERED that, if Mr. Lewin fails to file a second amended complaint

that complies with this order within the time allowed, the complaint and this action will

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be dismissed without further notice. 

DATED December 7, 2011, at Denver, Colorado.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

 

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