601 F. App'x 636
10th Cir.2015Background
- Bertolo, a pro se plaintiff and designated sex offender, sues under §1983 for constitutional deprivations at CTCF after a transfer from a prior facility.
- He experienced a multi-day lapse in medications and appeared mentally disoriented before being disciplined by Lt. Benezee, who issued an infraction and confiscated personal items and restricted telephone use.
- Bertolo was required to sign AR Form 300-26E, allegedly more restrictive than his prior facility’s agreement on reading material.
- The district court dismissed certain defendants (CDOC, Ploughe, Bolton) for Eleventh Amendment immunity or lack of personal participation and dismissed various claims (Monte z Remedial Plan, access to court, FOIA, Privacy Act, HIPAA).
- Defendants moved to dismiss remaining claims (medical care, property confiscation, restricted communications, mail/reading-room denial); a magistrate judge recommended dismissal, and the district court adopted, dismissing some claims with prejudice and others without prejudice for failure to exhaust, while denying amendments and counsel appointment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal participation of Ploughe and Bolton | Bertolo asserts Ploughe and Bolton personally caused deprivations. | Ploughe and Bolton lack personal participation; supervisor liability insufficient without linkage to a violation. | Dismissal proper for lack of personal participation. |
| Exhaustion of administrative remedies for First and Sixth Amendment claims | Bertolo exhausted his claims or should be allowed to proceed. | Claims were not exhausted; dismissal proper. | District court proper to dismiss for lack of exhaustion. |
| Denial of amendment and appointment of counsel | Amendment and counsel could cure deficiencies. | Amendment futile; counsel not required given merits. | District court did not abuse discretion in denying amendment and counsel. |
| Official-capacity claims and other forfeitures | Appellate review on certain official-capacity and remaining claims waived/forfeited; remaining merits affirmed. |
Key Cases Cited
- Gallagher v. Shelton, 587 F.3d 1063 (10th Cir. 2009) (supervisor liability requires personal participation; denial of grievances alone insufficient)
- Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008) (affirmative link required between supervisor and deprivation)
- Trujillo v. Williams, 465 F.3d 1210 (10th Cir. 2006) (detailed personal participation standard for §1983)
- Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007) (forfeiture of issues not raised on appeal; lack of preserved objections)
- Little v. Jones, 607 F.3d 1245 (10th Cir. 2010) (exhaustion doctrine and its application on appeal)
- Rucks v. Boergermann, 57 F.3d 978 (10th Cir. 1995) (standard for appointment of counsel in civil cases)
- McCarthy v. Weinberg, 753 F.2d 836 (10th Cir. 1985) (counsel appointment considering merits and complexity)
- Hall v. Witteman, 584 F.3d 859 (10th Cir. 2009) (amendment futility standard and related considerations)
- Anderson v. Suiters, 499 F.3d 1228 (10th Cir. 2007) (reasonableness of appointing counsel where issues not complex or meritorious)