Pettigrew v. Zavares et al

Filing 56

ORDER Affirming and Adopting United States Magistrate Judge's Recommendation. ORDERED that the Recommendation of 53 is AFFIRMED AND ADOPTED. In accordance therewith, it is ORDERED that the motion to dismiss, 40 is GRANTED and the case is DISMISSED WITH PREJUDICE by Chief Judge Wiley Y. Daniel on 03/30/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-00367-WYD-KLM
RYAN ALEXANDER PETTIGREW,
Plaintiff,
v.
EXECUTIVE DIRECTOR ARISTEDES ZAVARES [sic],
WARDEN SUSAN JONES,
WARDEN LARRY REED,
INTELLIGENCE OFFICER SGT. DENT,
INTELLIGENCE OFFICER SGT. SANDRA CROSS,
PROGRAMS MAJOR MACAIN HILDEBRAND,
PROGRAMS SUPERVISOR MARY McCORMICK,
REGIONAL COORDINATOR FAITH AND CITIZENS PROGRAMS DARRYL PROFFIT,
CASE MANAGER JOHN DOE,
HEARINGS OFFICER DALE BURKE,
In their Individual and Official Capacities,
Defendants.

ORDER AFFIRMING AND ADOPTING
UNITED STATES MAGISTRATE JUDGE'S RECOMMENDATION

I.

INTRODUCTION AND BACKGROUND
This matter is before the Court on the motion to dismiss Plaintiff's pro se civil

rights complaint, which was filed on August 1, 2011 [ECF No. 40]. The matter was
referred to Magistrate Judge Kristen L. Mix for a recommendation by memorandum
dated September 8, 2011. Magistrate Judge Mix issued a Recommendation on
January 23, 2012 [ECF No. 53], which is incorporated herein by reference. See 28
U.S.C. § 636(b)(1), Fed R. Civ. P. 72(b), D.C.COLO.LCivR. 72.1. Magistrate Judge Mix
recommends therein that the motion to dismiss be granted and Plaintiff’s Amended

Complaint be dismissed with prejudice. See Recommendation at 26.
This is a 42 U.S. C. § 1983 prison inmate civil rights case. Plaintiff, Ryan
Alexander Pettigrew, is a prisoner incarcerated at the Colorado State Penitentiary in
Canon City, Colorado, and he is representing himself pro se. In his Amended
Complaint filed June 20, 2011, he brings seven claims for relief. A concise summary of
Plaintiff’s claims is set forth in the Recommendation at 2-3. Magistrate Judge Mix
recommends dismissal of all of the Plaintiff’s claims based on Defendants’ qualified
immunity from suit, Plaintiff’s failure to file claims within the applicable statute of
limitations, and Plaintiff’s failure to allege personal participation by several Defendants.
On February 6, 2012, Plaintiff filed a timely Objection, which necessitates a de
novo determination as to those specified proposed findings or recommendations to
which objection is made since the nature of the matter is dispositive. Fed. R. Civ. P.
72(b); 28 U.S.C. § 636(b)(1).
Because Plaintiff is proceeding pro se, “[his] pleadings are to be construed
liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). This means that “if the court can
reasonably read the pleadings to state a valid claim on which the plaintiff[s] could
prevail, it should do so despite [their] failure to cite proper legal authority, [their]
confusion of various legal theories . . . or [their] unfamiliarity with pleading
requirements.” Id. At the same time, it is not “the proper function of the district court to
assume the role of advocate for the pro se litigant.” Id.

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II.

ANALYSIS OF PLAINTIFF’S OBJECTIONS
A.

Statute of Limitations

Turning to Plaintiff’s objections, Plaintiff first objects to the Magistrate Judge’s
conclusion that his first, second, third, fourth, fifth and sixth claims accrued outside of
the applicable statute of limitations and should be dismissed as time-barred. See
Recommendation at 7-12.
Plaintiff filed his initial Complaint on February 11, 2011. Plaintiff’s second claim
for relief is based on his incarceration in administrative segregation from January 2005
through August 2009, and from December 2010 to present; his third, fourth and fifth
claims are based on denial of a religious diet and communion from 2005 to 2010, and
his sixth claim is based on his opposition to a rule limiting the number of books an
inmate can access at a give time to two book per inmate, which was imposed from April
2005 to May 2010. Magistrate Judge Mix found that a two-year statute of limitations
applied to Plaintiff’s claims and that his second claim for relief accrued in 2005 as to
Defendant Reid and in 2007 as to Defendant Jones, based on the dates that each
Defendant commenced their employment in the position of Warden of the facility. See
Recommendation at 9. Regarding claims three, four, five, and six, Magistrate Judge
Mix found that those claims accrued on the dates that Plaintiff filed grievances regarding
those claims as identified in the Amended Complaint: Mach 14, 2008, April 7, 2008,
September 10, 2008, and January 20, 2009, respectively. Id.
Plaintiff does not object the Magistrate Judge’s conclusion that a two-year statute
of limitations applies to his claims. He does object, however to Magistrate Judge Mix’s
conclusion that his second claim for relief accrued prior to February 11, 2009.
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“A civil rights action accrues when facts that would support a cause of action are
or should be apparent.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). With
respect to his second claim, Plaintiff alleges that he was placed in administrative
segregation in January, 2005, and that in 2008, a doctor with the facility’s mental health
staff recommend that he be permitted to join a mental health program. Plaintiff alleges
that he was not placed in the program, despite the doctor’s recommendation, due to his
gang involvement. In his Objection, Plaintiff asserts that his claim accrued when he was
moved to a different facility in August, 2009, because it was only when he was “in a
different environment” that he became aware of the worsening of his mental condition.
See Objection at 5-6. Plaintiff did not make this argument in response to the motion to
dismiss and it was not considered by Magistrate Judge Mix in crafting her
Recommendation. Moreover, even assuming Plaintiff was not aware the “worsening of
his mental condition” until August, 2009, or the until after he was released from
segregation, the facts that supported his cause of action were apparent when he was
placed in segregation and when he was denied the opportunity to participate in a mental
health program, even if he did not know the full extent of his injuries until some later
point in time. Inuds. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963,
969 (10th Cir. 1994).
In addition, Plaintiff objects to Magistrate Judge Mix’s conclusion that the
continuing violation doctrine does not apply to toll his claims. See Objection at 2.
As Magistrate Judge Mix correctly noted in the Recommendation, “[t]he continuing
violation doctrine permits a Title VII plaintiff to challenge incidents that occurred outside
the statutory time limitations of Title VII if such incidents are sufficiently related and
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thereby constitute a continuing pattern of discrimination.” Hunt v. Bennett, 17 F.3d
1263, 1266 (10th Cir. 1994). Contrary to Plaintiff’s assertions, the Tenth Circuit has yet
to decide whether the continuing violation doctrine applies to claims brought under §
1983. Id.; see also Brock v. Herbert, 2011 WL 3154230, at *4 n.5 (10th Cir. July 27,
2011); Fogle v. Slack, 419 Fed. Appx. 860, 864 (10th Cir. Aug. 8, 2011) (unpublished)
(holding that defendants’ decisions to keep plaintiff in administrative segregation could
not be grouped together to constitute a continuing violation of his civil rights)).
Moreover, as Magistrate Judge Mix noted, the doctrine will not apply where a plaintiff
knew, or through the exercise of reasonable diligence would have known, that his rights
were being violated at the time the earlier events occurred. Wood v. Milyard, 414 Fed.
Appx. 103, 106 (10th Cir. 2011) (quoting Davidson v. America Online, Inc., 337 F.3d
1179, 1184 (10th Cir. 2003).
I agree with Magistrate Judge Mix that Plaintiff’s second, third, fourth, fifth and
sixth claims for relief must be dismissed as time-barred.
B.

Qualified Immunity

I next address Plaintiff’s objection to Magistrate Judge Mix’s conclusion that
Defendants are entitled to qualified immunity with respect to Plaintiffs’ First and Seventh
claims for relief based on Plaintiff’s failure to state a plausible violation of his
constitutional rights.
In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Supreme Court held that
government officials performing discretionary functions are shielded from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person should have known. Harlow places a
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presumption in favor of immunity of public officials acting in their individual capacities.
Schalk v. Gallemore, 906 F.2d 491 (10th Cir. 1990).
Once the defense is raised by a defendant, the burden shifts to the plaintiff to
come forward with facts or allegations sufficient to show both “‘that the defendant’s
actions violated a constitutional or statutory right’” and that the right “was clearly
established at the time of the defendant’s unlawful conduct.” Medina v. Cram, 252 F.3d
1124, 1128 (10th Cir. 2001) (quoting Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th
Cir 1995)). Although a plaintiff must ultimately establish both elements to avoid
application of the doctrine, the Court has discretion to consider the prongs in the test in
any order. See Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818 (2009).
The defense of qualified immunity can be asserted at different junctures in a
case. When it is raised in the context of a motion to dismiss, I consider only the
allegations in the Complaint.
1.

Claim 1

With respect to Plaintiff’s first claim for relief, in which he asserts that his Eighth
Amendment rights were violated when he was detained for 24-hours in a strip cell.
Magistrate Judge Mix found that the conditions described by Plaintiff were not
sufficiently serious to implicate constitutional protections and that Plaintiff failed to allege
that Defendants knew of and disregarded a substantial risk of serious harm. See
Recommendation at 20-21. Plaintiff objects to this conclusion and maintains that during
his 24-hour confinement in the strip cell he was deprived of basic necessities because
he was stripped of his clothing and denied bedding, hygiene and cleaning supplies, and
shackled unnecessarily. See Objection at 8-12.
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In order to hold prison officials liable for violating an inmate’s right to humane
conditions of confinement, two requirements must be met. First, the deprivation alleged
must be objectively “sufficiently serious,” and second, the officials must exhibit
“deliberate indifference” to a substantial risk of serious harm to an inmate. See Wilson
v. Seiter, 501 U.S. 294, 298 (1991). With respect to the first prong, prison officials are
required to provide humane conditions of confinement by ensuring inmates receive the
basic necessities of adequate food, clothing, shelter, and medical care and by taking
reasonable measures to guarantee the inmates’ safety. See Farmer v. Brennan, 511
U.S. 825, 832-33 (1994). Viewing the allegations in the amended complaint in the light
most favorable to Plaintiff, it does not appear that he was denied basic necessities
during his time in the strip cell. However, even assuming that Plaintiff was deprived
basic necessities, I find that the deprivation was not sufficiently serious to amount to a
constitutional violation. As Magistrate Judge Mix noted in the Recommendation, an
important factor in determining whether conditions of confinement meet constitutional
standards is the length of incarceration. See Barney v. Pulsipher, 143 F.3d 1229, 131112 (10th Cir. 1998). Here, while Plaintiff has alleged that he was subjected to
uncomfortable and even harsh conditions, I find that he was subjected to these
conditions for a relatively short period of time. Therefore, I agree with Magistrate Judge
Mix that Plaintiff has not adequately pled an Eighth Amendment violation in connection
with his 24-hour confinement in the strip cell. Because I find that Plaintiff has failed to
pled sufficiently serious constitutional deprivation, I need not address his contention that
Defendants were deliberately indifferent to a substantial risk of serious harm.

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2.

Claim 7

Magistrate Judge Mix also concluded that Plaintiff failed to state a claim for
violation of his constitutional rights in connection with his seventh claim for relief, which
is based on an allegedly erroneous order that Plaintiff pay $3.60 in restitution for a spit
mask used on Plaintiff when he was transferred. See Recommendation at 22-24. Here,
Magistrate Judge Mix found that Plaintiff failed to state a claim that he was deprived of
property without due process of law. See Recommendation at 22-24.
In his objection, Plaintiff frames his seventh claim not as a due process violation
but rather an illegal seizure in violation of his Fourth Amendment right to be free from
unreasonable searches and seizures. See Objection at 12-13. Even construing the
allegations in the Amended Complaint in the light most favorable to Plaintiff, I do not find
that the alleged seizure of his property was unreasonable. First, as Magistrate Judge
Mix noted in the Recommendation, a court “must accord substantial deference to the
professional judgment of prison administrators, who bear a significant responsibility for
defining the legitimate goals of a corrections system and for determining the most
appropriate means to accomplish them.” Id. at 22 (citing Overton v. Bazzetta, 439 U.S.
126, 132 (2003)). In addition, any Fourth Amendment violation is subsumed by a due
process analysis in this context. Plaintiff does not challenge Magistrate Judge Mix’s
conclusion that he has not alleged a due process violation; therefore, the seizure was
reasonable. Finally, I note that prisoners are generally not protected under the Fourth
Amendment even from unreasonable searches or seizures of property. See RodriguezRodriguez v. United States, 4 Fed. Appx. 637, 639 (10th Cir. 2001) (unpublished)
(noting that the Fourth Amendment does not establish a right to privacy in prisoners’
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cells)).
To the extent that Plaintiff also objects to the authority underlying Defendants
imposition of the restitution order, I reject this contention. Under Colorado law, the
Colorado Department of Corrections has “broad discretion of the classification and
rehabilitation of inmates and the managements of prisons.” Reeves v. Colo. Dept. of
Corrections, 155 P.3d 648, 651 (Colo. App. 2007) (citing C.R.S. § 17-1-103)). Plaintiff
has cited no authority establishing that the DOC’s restitution policy was in derogation of
its rule-making authority, or otherwise prohibited by state or federal law in these
circumstances.
C.

Personal Participation

Plaintiff asserts that Magistrate Judge Mix improperly recommends dismissal of
various Defendants based on a lack of personal participation. A defendant cannot be
held liable in a section 1983 action unless he or she caused or personally participated in
the alleged constitutional violation. Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.
1996). Because she dismissed Plaintiff’s second, third, fourth, fifth and sixth claims as
untimely, Magistrate Judge Mix analyzed personal participation only with respect to the
Defendants alleged to have violated Plaintiff’s rights in connection with his first and
seventh claims for relief. Magistrate Judge Mix found that Plaintiff did not allege
personal participation with respect to Defendants Jones, Reed and Zavaras. See
Recommendation at 13-15. Plaintiff objects, to this conclusion, but acknowledges that
the personal participation of these Defendants is limited to their role in creating the
prison rules and policies underlying his alleged constitutional violations. I agree with
Magistrate Judge Mix that this is insufficient. See Recommendation at 14-15.
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Moreover, as discussed above, Plaintiff has failed to allege a plausible constitutional
violation in connection with his first and seventh claims for relief. Therefore, even if
Defendants personally participated in the alleged violations, they are entitled to qualified
immunity with respect to these claims.
D.

Compensatory Damages

I turn to Plaintiff’s objection to Magistrate Judge Mix’s conclusion that he is not
entitled to recover compensatory damages in connection with his seventh claim for
relief. See Recommendation at 16; Objection at 8. The PLRA provides that “[n]o
Federal civil action may be brought by a prisoner confined in a jail, prison or other
correctional facility, for mental or emotional injury suffered while in custody without a
prior showing of physical injury.” 42 U.S.C. § 1997e(e). The PLRA bars compensatory
damages for mental and emotional injuries suffered by a prisoner (regardless of the
nature of the right asserted) in the absence of physical injury. Plaintiff asserts that
because his seventh claim for relief involves compensation for property
unconstitutionally seized pursuant to DOC policy, his claim is not barred by the PLRA.
However, as discussed above, Plaintiff has failed to allege a plausible constitutional
violation in connection with his seventh claim for relief. Therefore, even if Plaintiff’s
claim is not barred by the PLRA, Defendants are entitled to qualified with respect to this
claim.
E.

Official Capacity Claims

Finally, Plaintiff contends that his official capacity claims against the Defendants
must stand because he “properly stated constitutional violations” in his Amended
Complaint. See Objection at 13. For the reasons set forth herein, I find that Magistrate
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Judge Mix properly dismissed Plaintiff’s request for injunctive relief against Defendants
in their official capacities based on his failure to establish the violation of any
constitutional right, as set forth herein and in the Recommendation. See Dawson v.
Johnson, 266 Fed. Appx. 713, 715-17 (10th Cir. 2008) (unpublished).
III.

CONCLUSION
Accordingly, for the reasons stated above, it is
ORDERED that the Recommendation of January 23, 2012 [ECF No. 53] is

AFFIRMED AND ADOPTED. In accordance therewith, it is
ORDERED that the motion to dismiss, filed August 1, 2011 [ECF No. 40] is
GRANTED and the case is DISMISSED WITH PREJUDICE.
Dated: March 30, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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