Reed v. Clements et al

Filing 21

ORDER to Dismiss in Part and to Assign Case to a District Judge and to a Magistrate Judge. ORDERED that Defendants Tom Clements, James Faulk, John Chapdelaine, and Carol Soars are dismissed as parties to this action. FURTHER ORDERED that Claims Six and Seven are dismissed. FURTHER ORDERED that this case shall be assigned to District Judge Marcia S. Krieger, pursuant to D.C.COLO.LCivR 40.1C.1., and to Magistrate Judge Michael E. Hegarty, by Judge Lewis T. Babcock on 7/31/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00927-BNB
NORMAN RAY REED, JR.,
Plaintiff,
v.
TOM CLEMENTS, in his professional and individual capacities,
JAMES FAULK, in his professional and individual capacities,
MIKE TIDWELL, in his professional and individual capacities,
EVE LITTLE, in her professional and individual capacities,
JOHN CHAPDELAINE, in his professional and individual capacities,
MICHELLE NYCZHALLIGAN, in her professional and individual capacities,
CAROL SOARS, in her professional and individual capacities, and
CHARLES HIGGINS, in his professional and individual capacities,
Defendants.

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

Plaintiff, Norman Ray Reed, Jr., is in the custody of the Colorado Department of
Corrections (DOC) and currently is incarcerated at the Colorado Territorial Correctional
Facility in Canon City, Colorado. Mr. Reed filed a Prisoner Complaint pursuant to 42
U.S.C. § 1983 on April 6, 2012. He has been granted leave to proceed pursuant to 28
U.S.C. § 1915 without payment of an initial partial filing fee.
Magistrate Judge Boyd N. Boland reviewed the Prisoner Complaint on May 10,
2012, and determined that it was deficient because it failed to comply with Rule 8 of the
Federal Rules of Civil Procedure and also failed to allege the personal participation of
each named Defendant. Therefore, Magistrate Judge Boland directed Mr. Reed to file

an Amended Complaint within thirty days. After receiving an extension of time, Mr.
Reed filed an Amended Complaint on July 12, 2012.
The Court must construe the Amended Complaint liberally because Mr. Reed 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 cannot act as a pro se litigant’s
advocate. Hall, 935 F.2d at 1110.
Pursuant to 28 U.S.C. § 1915A, the Court is required to review the Amended
Complaint because Mr. Reed 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. Reed asserts seven claims in this action. In general, he alleges that the
named Defendants are retaliating against him for grievances and legal actions that he
has filed. As his first claim, he asserts that he informed Defendants Little and Tidwell
that he had “custody issues” with other inmates at the Sterling Correctional Facility
because he had been an informant against one of the inmates and because the step
brother of a victim that Mr. Reed had sexually assaulted was incarcerated at the facility.
Amended Complaint at 6. He alleges that Defendants Little and Tidwell informed him
that little effort would be made to separate or protect him from these inmates, and they
refused to place him in protective custody. Id. at 6-8. As his second claim, Mr. Reed
asserts that Defendant Nyczhalligan directed Defendant Higgins to move Mr. Reed to a
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unit where he would be housed with an inmate with whom he had a “known custody
issue” in retaliation for grievances Mr. Reed had filed. Id. at 9-10. He alleges that when
he refused to move to the unit, in fear for his life, Defendant Higgins assaulted him and
placed him in a strip cell where he was deprived of clothes, bedding, and food. Mr.
Reed’s third claim is largely repetitive and a continuation of his second claim. He again
asserts that Defendant Nyczhalligan directed Defendant Higgins to move him to a unit
where he would be placed with inmates who had reason to harm him. He also asserts
that Defendant Higgins stated that he would inform all of the “white boys” on the unit
that Mr. Reed is a “sex offender and a snitch” and that Mr. Reed would get his “ass
kicked” if he refused to move to the unit. Id. at 11-12. Fourth, Mr. Reed asserts that at
a meeting with Defendants Nyczhalligan and Tidwell on April 22, 2011, Defendant
Nyczhalligan told him that he would be housed in the “worst unit” with the “most
dangerous inmates” because he refused to stop filing grievances and lawsuits against
prison officials. Id. at 13-14. Fifth, Mr. Reed alleges that Defendants Higgins, Little, and
Nyczhalligan had a meeting with an inmate who is a member of a prison gang where
they told the inmate that Mr. Reed is a sex offender and an informant. Id. at 15. Mr.
Reed alleges that after the meeting, two members of the prison gang came to his cell,
physically assaulted him, and told him that he was required to “pay rent” in the form of
ten stamps, or he would be sexually assaulted. Id. He asserts that the gang members
continued to extort and assault him, and that the named Defendants refused to protect
him. Id. at 15-16. Sixth, Mr. Reed alleges that he has written letters to Defendants
Executive Director Tom Clements and Warden James Faulk but that these Defendants
have refused to intervene in the situation. Id. at 17. Seventh, Mr. Reed asserts that
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Warden Carol Soars placed him on a grievance restriction because she alleged that he
had filed numerous frivolous grievances. Id. at 18. He further alleges that he filed
grievances contesting the grievance restriction with Defendants Soars and Chapdelaine
and that the Defendants refused to assist him. Id. at 19. Mr. Reed asserts that his
First, Eighth, and Fourteenth Amendment rights have been violated, and he seeks
damages in addition to declaratory relief.
As a preliminary matter, the Court notes that Mr. Reed is suing Defendants
Executive Director Tom Clements and Warden James Faulk because these Defendants
allegedly are responsible for the constitutional violations committed by other individuals
or because these Defendants hold supervisory positions. Mr. Reed asserts that he
notified Defendants Clements and Faulk 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 Clements and
Faulk.
Mr. Reed was previously 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 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 Ҥ 1983 does not recognize a concept of
strict supervisor liability; the defendant’s role must be more than one of abstract
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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 correspondence does
not demonstrate the warden’s personal participation in an alleged constitutional
violation). Mr. Reed has failed to allege an affirmative link between the alleged
constitutional violations and these Defendants. Therefore, Defendants Tom Clements
and James Faulk are improper parties to this action, and they will be dismissed. Claim
Six, which is asserted exclusively against Defendants Clements and Faulk, will also be
dismissed.
The Court also notes that in Claim Seven, Mr. Reed is suing Defendants
Associate Warden John Chapdelaine and Associate Warden Carol Soars, in part,
because they allegedly denied administrative grievances filed by Mr. Reed. See
Amended Complaint at 18-20. However, these allegations fail to establish the personal
participation of Defendants Chapdelaine and Soars. 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)).
Also in Claim Seven, Mr. Reed asserts that his due process rights were violated
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because Defendants Soars and Chapdelaine restricted his ability to file grievances.
Amended Complaint at 18-20. However, there is no independent constitutional right to
use state administrative grievance procedures. See Boyd v. Werholtz, No. 10-3284,
2011 WL 4537783, *1 (10th Cir. Oct. 3, 2011) (unpublished). “Nor does the state’s
voluntary provision of an administrative grievance process create a liberty interest in
that process.” See id. (citing Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011)
(observing that inmates have no constitutionally-protected liberty interest in access to
prison grievance procedure); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.1993) (per
curiam) (“A prison grievance procedure is a procedural right only, it does not confer any
substantive right upon the inmates. Hence, it does not give rise to a protected liberty
interest . . . .” (quotation and brackets omitted)). Rather “[w]hen the claim underlying
the administrative grievance involves a constitutional right, the prisoner’s right to petition
the government for redress is the right of access to the courts, which is not
compromised by the prison’s refusal to entertain his grievance.” Boyd, 2007 WL
4537783 at *1 (quoting Flick v. Alba, 932 F.2d 728, 729 (8th Cir.1991) (per curiam)
(internal quotation marks omitted). Mr. Reed’s alleged restriction from filing grievances
does not state a right of access claim. Claim Seven, therefore, will be dismissed as
legally frivolous. Because Mr. Reed fails to assert any non-frivolous claim
demonstrating that Defendants Chapdelaine and Soars personally participated in
violating his constitutional rights, Defendants Associate Warden John Chapdelaine and
Associate Warden Carol Soars are improper parties to the action and will be dismissed.
The remainder of Mr. Reed’s claims (One, Two, Three, Four, and Five) are not
appropriate for summary dismissal and will be drawn to a district judge and a magistrate
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judge. Accordingly, it is
ORDERED that Defendants Tom Clements, James Faulk, John Chapdelaine,
and Carol Soars are dismissed as parties to this action for lack of personal participation.
It is
FURTHER ORDERED that Claims Six and Seven are dismissed for the reasons
set forth above. It is
FURTHER ORDERED that this case shall be assigned to District Judge Marcia
S. Krieger, pursuant to D.C.COLO.LCivR 40.1C.1., and to Magistrate Judge Michael E.
Hegarty.
DATED at Denver, Colorado, this 31st day of

July

, 2012.

BY THE COURT:

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

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