61 F. 3d 915 - Chilson v. Romer

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Ernie O. Chilson, an inmate of the Colorado Department of Corrections, appeals the dismissal of his pro se 42 U.S.C.1983 action. We affirm.

Seeking damages and declaratory judgment, Mr. Chilson filed a complaint against the Governor of the State of Colorado, the Executive Director of the Colorado Department of Corrections, and two administrators of the Department of Corrections, contending they had acted to deprive him of rights protected by the United States Constitution.2 The action was asserted against the defendants in their individual and official capacities.

Plaintiff contends the clinician who administered therapy to him conducted herself improperly during the course of treatment.3 Alleging the improper treatment constituted a violation of "minimal standards of mental health care," plaintiff asserted the administrators failed to properly train and supervise the clinician. He further asserted the Governor and the Director of the Department of Corrections "failed to use reasonable diligence in the supervision of the employees and Mental Health staff," and were "negligent, careless and reckless with the life of the Plaintiff."

Contrary to the recommendation of the Magistrate Judge to whom the case had been referred, the district court dismissed the action against these defendants on the ground the plaintiff had failed to allege any of them had a personal involvement with the plaintiff.4 Mr. Chilson appeals from that judgment.

We have said "[a] claim seeking personal liability in a civil rights suit must be predicated on the defendant actor's personal involvement; there must be an affirmative link to causally connect the actor with the alleged violation." Gates v. Unified Sch. Dist., 996 F.2d 1035, 1042 (10th Cir.1993) (citing Parratt v. Taylor, 451 U.S. 527 (1981)). Moreover, when acts committed by a person under the supervision of another are the predicate for a claim against the person in authority, the plaintiff must allege and prove the supervisor "actually knew of and acquiesced in the [actor's] behavior." Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir.1995). Rumors or assertions by third parties will not provide the actual knowledge required as a predicate for liability under 1983. Id. at 490-91.5

Mr. Chilson did not allege any of the defendants had the requisite knowledge of the clinician's alleged improper conduct. Indeed, his entire action against these defendants was founded upon a theory they were responsible to him simply because they neglected a statutory responsibility for supervision of those under their jurisdiction. The complaint was thus deficient and properly dismissed.

Plaintiff attempts to revive his claim by citing Monell v. Department of Social Servs., 436 U.S. 658 (1978), but his reliance is misplaced. Monell creates no claim for relief in the absence of personal involvement by an individual defendant. Individuals adopting and enforcing a policy which is constitutionally infirm may become liable for their acts and the acts of others under their supervision, but that liability is predicated upon active involvement in the enforcement of the policy.

The personal liability of public officials does not arise from the fact they hold public office and consequently have authority over public employees. Without some participation in an act which abuses constitutional rights, public officials cannot be made responsible for the actions of individual employees. Mr. Chilson's belief the clinician acted irresponsibly or that supervising officers were negligent cannot be transformed into a civil rights action against those in direct or remote authority over her. Because Mr. Chilson made no cognizable claim that the defendants either created or enforced a policy that is contrary to the Constitution, he failed to assert a Monell claim.

AFFIRMED.