IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02721-BNB

BRUCE W. JONES,

Plaintiff,

v.

BLAKE DAVIS, Individually and in His Official Capacity as Complex Warden, at the

Federal Correctional Institution Florence,

JULIE WANDS, Individually and in Her Official Capacity as the Former Warden, at the

Federal Correctional Institution Florence,

THOMAS R. KANE, Individually and in His Official Capacity as Acting Director of the

Feder [sic] Bureau of Prisons, 

NEWTON E. KENDIG, Individually and in His Official Capacity as the Medical Director

of the Federal Bureau of Prisons,

MARK KELLAR, Individually and in His Official Capacity as the Health Service

Administrator at F.C.I. - Florence,

LISA McDERMOTT, Individually and in Her Official Capacity as Assistant Health

Services Administrator at F.C.I. - Florence,

PETER BLUDWORTH, Individually and in His Official Capacity as Associate Warden at

F.C.I. - Florence,

MIKE GOODWIN, Individually and in His Official Capacity as Chief Pharmacist at 

F.C.I. - Florence,

DR. DAVID ALLRED, Individually and in His Official Capacity as Clinical Director of

F.C.I. - Florence,

DR. GEORGE SANTINI, Individually and in His Official Capacity as Staff Physician at

F.C.I. - Florence,

CARI RITTER, Individually and in Her Official Capacity as Mid-level Provider,

MRS. A. VINYARD, Individually and in Her Official Capacity as Physician Assistant at

F.C.I. - Florence,

GILBERTA TRUJILLO, Individually and in Her Official Capacity as Secretary of Medical

at F.C.I. - Florence,

GRANT WORSHAM, Individually and in His Official Capacity as Mesa Bravo unit

counselor at F.C.I. - Florence,

BARBRA BATULIS, Individually and in Her Official Capacity as Pueblo Alpha unit

counselor at F.C.I. - Florence,

TERESA K. COZZA-RHODES, Individually and in Her Official Capacity as Warden at

F.C.I. - Florence,

JANE DOE, Individually and in Her Official Capacity as Administrative Remedy

Coordinator at FCI - Florence,

MR. GRIFFIN, Individually and in His Official Capacity as Correctional Officer at F.C.I. - 

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Florence,

JOHN DOE, Individually and in His Official Capacity as Chief Health Programs at North

Central Region, Leavenworth Kansas, and

DR. JAMES PELTON, Individually and in His Official Capacity as Region Medical

Director at North Central Region, Leavenworth Kansas,

Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE

TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE

Plaintiff, Bruce W. Jones, is a prisoner in the custody of the Federal Bureau of

Prisons who is currently incarcerated at the Federal Correctional Institution (FCI) in

Florence, Colorado. Mr. Jones initiated this action by filing a pro se prisoner complaint.

He has been granted leave to proceed in forma pauperis with payment of an initial

partial filing fee.

On January 23, 2011, Magistrate Judge Craig B. Shaffer determined that the

prisoner complaint was deficient because it named improper parties and failed to allege

the personal participation of all named Defendants. Accordingly, Magistrate Judge

Shaffer directed Mr. Jones to file an amended prisoner complaint within thirty days. Mr.

Jones submitted an amended complaint on February 2, 2012.

The Court must construe the amended complaint liberally because Mr. Jones 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. Jones is a prisoner and some of the Defendants are officers or

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

dismiss the complaint, or any portion of the complaint, 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). 

Mr. Jones asserts six claims in the amended complaint. As background for his

claims, Mr. Jones alleges that on January 23, 2008, a CT scan revealed a “soft tissue

mass” on his spine. Amended Complaint at 8. He asserts that he was treated by

numerous Defendants who knew about the soft tissue mass on his spine but did not

inform him of the actual problem until August 3, 2011. Id. at 9. Mr. Jones asserts that

the named Defendants failed to treat the issue with his spine and that he has suffered

from constant pain and other neurological problems from January 23, 2008, to the

present. Id. Mr. Jones further asserts that the named Defendants have refused to

provide him with a neurosurgery consult. Finally, Mr. Jones alleges that he has been

denied access to pain medication and other needed medical treatments. Mr. Jones

asserts that his Fifth, Eighth and Fourteenth Amendment rights have been violated. As

relief, he seeks damages in addition to injunctive relief.

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However, the Court notes that Mr. Jones is suing Defendants Blake Davis, Julie

Wands, Thomas R. Kane, Newton E. Kendig, and Theresa A. Cozza-Rhodes because

these Defendants allegedly are responsible for the constitutional violations committed

by other individuals or because these Defendants hold supervisory positions. Mr. Jones

asserts that he notified these Defendants of constitutional violations committed by

Defendants under their supervision by sending letters to them. However, these

allegations fail to establish the personal participation of Defendants Blake Davis, Julie

Wands, Thomas R. Kane, Newton E. Kendig, and Theresa A. Cozza-Rhodes. Mr.

Jones was previously warned by Magistrate Judge Shaffer that personal participation is

an essential allegation in a civil rights action. See Bennett v. Passic, 545 F.2d 1260,

1262-63 (10th Cir. 1976). 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 on a theory of respondeat superior. 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 receiving correspondence from an

inmate does not demonstrate the personal participation required to trigger personal

liability under § 1983. Davis v. Ark. Vally Corr. Facility, 99 Fed. Appx. 838, 843 (10th

Cir. May 20, 2004) (unpublished opinion) (holding that copying the warden on

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correspondence does not demonstrate the warden’s personal participation in an alleged

constitutional violation). Mr. Jones has failed to allege an affirmative link between the

alleged constitutional violations and these Defendants. Because Mr. Jones fails to

assert that these Defendants personally participated in violating his constitutional rights,

Defendants Blake Davis, Julie Wands, Thomas R. Kane, Newton E. Kendig, and

Theresa A. Cozza-Rhodes are improper parties to the action and will be dismissed.

The Court also notes that Mr. Jones is suing Defendants Grant Worsham, Jane

Doe Administrative Remedy Coordinator, and Barbra Batulis because they allegedly

denied, or failed to act on, administrative grievances filed by Mr. Jonesl. See Amended

Complaint at 15. However, these allegations fail to establish the personal participation

of Defendants Worsham, Jane Doe, and Batulis. The Tenth Circuit has repeatedly

noted “that ‘the denial of . . . grievances alone is insufficient to establish personal

participation in the alleged constitutional violations’” of other defendants. Whitington v.

Ortiz, 307 Fed. Appx. 179, 193 (10th Cir. Jan. 13, 2009) (unpublished decision) (quoting

Larson v. Meek, 240 Fed. Appx. 777, 780 (10th Cir. June 14, 2007) (unpublished

decision)). Mr. Jones has again failed to allege an affirmative link between the alleged

constitutional violations and these Defendants. Because Mr. Jones fails to assert that

these Defendants personally participated in violating his constitutional rights,

Defendants Grant Worsham, Jane Doe Administrative Remedy Coordinator, and Barbra

Batulis are improper parties to the action and will be dismissed. 

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After review pursuant to D.C.COLO.LCivR 8.2C, the Court has determined that

the remaining claims 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

ORDERED that Defendants Blake Davis, Julie Wands, Thomas R. Kane, Newton

E. Kendig, Theresa A. Cozza-Rhodes, Grant Worsham, Jane Doe Administrative

Remedy Coordinator, and Barbra Batulis are dismissed as parties to this action. It is

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

magistrate judge.

DATED at Denver, Colorado, this 13th day of February , 2012.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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