Griffin v. Hickenlooper et al

Filing 10

ORDER TO DISMISS IN PART AND TO DRAW CASE TO A DISTRICT JUDGE AND A MAGISTRATE JUDGE. The amended complaint is drawn in part and dismissed in part. Claims one, two, and three and the case are drawn to a district judge and magistrate judge. Claims four and five are dismissed as legally frivolous. Defendants Tom Clements and John L. Davis are dismissed as parties to this action, by Judge Lewis T. Babcock on 4/5/12. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-03380-BNB
HENRY LEE GRIFFIN, JR.,
Plaintiff,
v.
JOHN W. HICKENLOOPER, as Governor of the State of Colorado, in official capacity,
TOM CLEMENTS, in his individual and official capacity, and
JOHN L. DAVIS, in his individual and official capacity,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE
TO A DISTRICT JUDGE AND A MAGISTRATE JUDGE

Plaintiff, Henry Lee Griffin, Jr., is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the correctional
complex in Buena Vista, Colorado. Mr. Griffin filed pro se a prisoner complaint pursuant
to 42 U.S.C. § 1983 for money damages and declaratory and injunctive relief. He was
granted leave to proceed pursuant to 28 U.S.C. § 1915 without payment of an initial
partial filing fee.
On January 31, 2012, Magistrate Judge Boyd N. Boland ordered Mr. Griffin to file
within thirty days an amended complaint that was double-spaced and written legibly in
compliance with Rule 10.1 of the Local Rules of Practice for this Court, complied with
the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, and alleged
the personal participation of each named Defendant. On March 1, 2012, Mr. Griffin filed

an amended § 1983 complaint for money damages and declaratory and injunctive relief.

Subsection (e)(2)(B) of § 1915 requires a court to dismiss sua sponte an action
at any time if the action is frivolous, malicious, or seeks monetary relief against a
defendant who is immune from such relief. 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. Neitzke v. Williams, 490 U.S. 319, 324 (1989).
Mr. Griffin is cautioned that his ability to file a civil action or appeal in federal
court in forma pauperis pursuant to § 1915 may be barred if he has three or more
actions or appeals in any federal court that were dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g).
Under § 1915(g), the Court may count dismissals entered prior to the enactment of this
statute. Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).
The Court must construe Mr. Griffin’s filings liberally because he is a pro se
litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). However, the Court should not act as a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the amended
complaint and the action will be drawn in part and dismissed in part pursuant to §
1915(e)(2)(B) as legally frivolous.
Mr. Griffin asserts five claims. In his first claim, asserted against Governor John
W. Hickenlooper, Mr. Griffin complains that his case filed in the District Court of Chaffee
County, Colorado, was dismissed pursuant to Colo. Rev. Stat. § 13-17.5-102.7(1), a
state statute similar to the “three strikes” provision in 28 U.S.C. § 1915(g), in violation of
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his rights under the First and Fourteenth amendments. He complains that the state
statute is unconstitutional on its face and as applied to him. In his second claim,
asserted against Governor Hickenlooper, Mr. Griffin alleges that the application of Colo.
Rev. Stat. § 17-20-114.5 concerning restricted privileges for prisoners violates his
Fourteenth Amendment rights because he was placed on restricted privileges and his
personal property was confiscated. Again, he complains that the statute is
unconstitutional on its face and as applied to him. In his third claim, asserted against
Governor Hickenlooper, Mr. Griffin alleges that Colo. Rev. Stat. § 17-20-115 concerning
inmate labor is unconstitutional on its face and violates his Fourteenth Amendment
rights because of its infringement on his right to earn a living, pay off debt, and pay
taxes. In his fourth claim, asserted against Tom Clements, DOC executive director, Mr.
Griffin maintains that DOC Policy AR 850-06 violates his Fourteenth Amendment rights
because his personal property was confiscated and destroyed without his authorization.
He further complains that the regulation is unconstitutional. In his fifth and final claim,
asserted against Defendant John L. Davis, his warden, Mr. Griffin alleges that his
Fourteenth Amendment rights were violated because Shannon Lynne Grant filed a false
report against him for disobeying a lawful order; hearing officer Gerry Blank used the
false report to find him guilty and sanction him with fifteen days of punitive segregation;
and that although Mr. Davis expunged the conviction, Mr. Davis failed to respond earlier
to Mr. Griffin’s offender communication form requesting intervention before Mr. Griffin
was placed in punitive segregation.
Claims one through three asserted against Governor Hickenlooper and alleging
unconstitutional state statutes will be drawn to a district judge and magistrate judge.
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The Court will address the merits of claim four asserted against Warden Davis in
which Mr. Griffin maintains that DOC Policy AR 850-06 concerning offender property is
unconstitutional and violates his Fourteenth Amendment rights because his personal
property was confiscated and destroyed without his authorization.
First, Mr. Griffin’s argues that administrative regulation 850-06 is unconstitutional
on its face. “Facial challenges are disfavored[,]” Peterson v. LaCabe, 783 F. Supp. 2d
1167, 1173 (D. Colo. 2011) (citing Washington State Grange v. Washington State
Republican Party, 552 U.S. 422, 450 (2008) (internal quotation marks omitted)) and
generally fail if any “set of circumstances exists under which the [law] would be valid.”
Peterson at 1173 (citing Washington State Grange at 449) (internal quotation marks
omitted). In other words, to succeed on a facial challenge, Mr. Griffin must show that
the law is unconstitutional in all of its applications. Peterson at 1173 (citing United
States v. Salerno, 481 U.S. 439, 745 (1987)). Mr. Griffin fails to do so.
According to the DOC website, www.doc.state.co.us/administrative-regulations,
AR 850-06 allows for the confiscation of contraband, i.e., an item an offender is not
specifically authorized to have in his possession. AR 850-06 III.D. Contraband may be
disposed of in accordance with AR 300-05, concerning searches and contraband
control. AR 850-06 IV.C.4; see also AR 850-06 IV.I. and L. AR 300-05 provides for
contraband storage (IV.P.) and disposition through various means (IV.S.) by providing
notice to the offender that he has ten calendar days to provide the property control
officer with the desired disposition (IV.S.6.c.) and allowing the offender to mail the item
to an address outside of the DOC at his expense (IV.S.6.c.1.). Other options include
donation (IV.S.6.c.2.) or destruction (IV.S.6.c. 3.) of the item. Because Mr. Griffin fails
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to show that the administrative regulation in question is unconstitutional in all of its
applications, his claim of unconstitutionality fails.
To the extent Mr. Griffin’s fourth claim can be construed as due process claim
based on the confiscation and loss of his personal property, the claim lacks merit. The
United States Constitution guarantees due process when a person is deprived of life,
liberty, or property. See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994).
However, "the United States Supreme Court has held that neither negligent nor
intentional deprivations of property under color of state law that are random and
unauthorized give rise to a § 1983 claim where the plaintiff has an adequate state
remedy . . . ." Gillihan v. Shillinger, 872 F.2d 935, 939 (10th Cir. 1989); see also
Hudson v. Palmer, 468 U.S. 517, 533 (1984) (finding that an unauthorized intentional
deprivation of property does not violate due process if an adequate postdeprivation
remedy for the loss is available). A prison grievance procedure is an adequate
postdeprivation remedy if the grievance procedure provides a meaningful remedy. See
id. at 536 n.15; Williams v. Morris, 697 F.2d 1349, 1351 (10th Cir. 1982). Mr. Griffin
does not allege that the prison grievance procedure was unavailable to him because he
alleges that he exhausted the procedure. The fact that his administrative grievances
were not successful, by itself, does not mean that the grievance procedure was not an
adequate remedy. Mr. Griffin also has an adequate remedy available to him in state
court under state law. See, e.g., Cooper v. Belcher, 2010 WL 3359709, at *15 (D. Colo.
Aug. 25, 2010) (unpublished opinion) (noting that "[a]dequate state remedies are not
limited to the filing of grievances, but include filing complaints in state court.").

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Finally, to the extent Mr. Griffin may be arguing that Mr. Clements violated DOC
policy by confiscating and destroying his property, the claim fails. A violation of a prison
regulation is insufficient to state a constitutional claim under § 1983. See, e.g., Davis v.
Scherer, 468 U.S. 183, 194 (1984) ("[o]fficials sued for constitutional violations do not
lose their qualified immunity merely because their conduct violates some statutory or
administrative provision"); see also Hovater v. Robinson, 1 F.3d 1063, 1068 n. 4 (10th
Cir.1993) ("failure to adhere to administrative regulations does not equate to a
constitutional violation"); Gaines v. Stenseng, 292 F.3d 1222, 1225 (10th Cir.2002) ("[t]o
the extent [plaintiff] seeks relief for alleged violations of state statutes and prison
regulations, . . . he has stated no cognizable claim under § 1983") (citations omitted).
This is because prison regulations are "primarily designed to guide correctional officials
in the administration of a prison. [They are] not designed to confer rights on inmates."
Sandin v. Conner, 515 U.S. 472, 481-82 (1995). Mr. Griffin’s fourth claim is legally
frivolous and will be dismissed pursuant to § 1915(e)(2)(B). Because Mr. Clements is
only named as a Defendant in claim four, he will be dismissed as a party to this action.
Claim five alleges that Mr. Davis violated the Plaintiff’s Fourteenth Amendment
rights by failing to respond to a communication that would have prevented prison
employees from using false evidence against him at a hearing at which he was
sanctioned by placement in punitive segregation. Mr. Griffin previously was warned by
Magistrate Judge Boland 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
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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). A supervisor is only
liable for constitutional violations that he or she causes. See Dodds v. Richardson, 614
F.3d 1185, 1211 (10th Cir. 2010). 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 United States
Court of Appeals for 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. Valley Corr. Facility, 99 F. App’x 838, 843 (10th Cir.
May 20, 2004) (unpublished opinion) (holding that copying the warden on
correspondence does not demonstrate the warden's personal participation in an alleged
constitutional violation). Mr. Griffin has failed to allege an affirmative link between the
alleged constitutional violation and Mr. Davis. Therefore, Mr. Davis is an improper party
to this action, and will be dismissed. Because claim five is asserted only against Mr.
Davis, claim five will be dismissed as legally frivolous pursuant to § 1915(e)(2)(B).
Accordingly, it is
ORDERED that the amended complaint is drawn in part and dismissed in part. It
is
FURTHER ORDERED that claims one, two, and three and the case are drawn to
a district judge and magistrate judge. It is

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FURTHER ORDERED that claims four and five are dismissed as legally frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B). It is
FURTHER ORDERED that Defendants Tom Clements and John L. Davis are
dismissed as parties to this action. It is
FURTHER ORDERED that the clerk of the Court is directed to remove the
names of Tom Clements and John L. Davis as parties to this action. The only
remaining Defendant is Governor John L. Hickenlooper.
DATED at Denver, Colorado, this 5th

day of

April

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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