Gilbert-Mitchell v. Allred et al

Filing 24

ORDER to Dismiss in Part and to Draw Case to District Judge and to Magistrate Judge. ORDERED that Defendants the United States and Charlie A. Daniels are DISMISSED as parties to this action. FURTHER ORDERED that claim six, seven, eight, ten, and eleven are DISMISSED. FURTHER ORDERED that the retaliation and other constitutional claims against Defendants Allred, Newcomb, Inouye, Rodrigues, Leggitt, Montoya, and McDermott are drawn to a district judge and to a magistrate judge, by Judge Lewis T. Babcock on 1/22/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01997-BNB
WALLACE GILBERT-MITCHELL, JR.
Plaintiff.
V.
DAVID V. ALLRED, in his personal and professional capacities,
H. NEWCOMB, in his personal and professional capacities,
MS. INOUYE, in her personal and professional capacities,
CHARLIE A. DANIELS, in his personal and professional capacities,
J. RODRIGUES, in his personal and professional capacities,
ROBERT LEGGITT, in his personal and professional capacities,
THERESA MONTOYA, in her personal and professional capacities,
MS. MCDERMOTT, in her personal and professional capacities, and
THE UNITED STATES OF AMERICA, in tort,
Defendants.

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

Plaintiff, Wallace Gilbert-Mitchell, Jr., is in the custody of the federal Bureau of
Prisons and is incarcerated currently at USP-Florence, Colorado. He initiated this
action by filing pro se a Prisoner Complaint and a Prisoner’s Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915. Plaintiff asserts claims against the
Defendants for violation of his constitutional rights pursuant to 28 U.S.C. § 1331 and
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
On August 7, 2012, Magistrate Judge Boyd N. Boland reviewed the Complaint
and found it to be deficient because the Plaintiff is suing an improper party, asserts

claims under a federal statute that does not provide a private cause of action, and fails
to allege the personal participation of each Defendant in the alleged constitutional
deprivations. Accordingly, the Court directed Mr. Gilbert-Mitchell to file an amended
complaint within thirty days. Plaintiff was thereafter granted four extensions of time to
file his amended complaint. It was due on December 26, 2012. Mr. Gilbert-Mitchell was
advised in the August 7 Order that failure to file an amended complaint by the courtordered deadline may result in the dismissal of some claims and defendants. Plaintiff
has not filed an amended complaint to date. Accordingly, the Court will review the
allegations of the original Complaint.
Mr. Gilbert-Mitchell has been granted leave to proceed in forma pauperis
pursuant to 28 U. S.C. § 1915. The Court must dismiss the Complaint, or any portion of
the Complaint, that is frivolous. See 28 U.S.C. § 1915A(b)(1). 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).
The Court construes the Complaint liberally because Mr. Gilbert-Mitchell is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as
an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons discussed
below, the Complaint will be dismissed, in part.
In the Complaint, Mr. Gilbert-Mitchell asserts that the Defendants engaged in the
following unconstitutional actions, that were taken, in part, in retaliation for Plaintiff’s
filing of grievances and his pursuit of the instant litigation: (1) denial of adequate
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medical care for his serious medical needs; (2) feeding him soy products and exposing
him to soy knowing that he was allergic to soy; and, refusing to treat his allergic
reactions; (3) denial of three adequate meals a day; (4) housing him in cells with
inoperable toilets, thereby resulting in his prolonged exposure to feces; (5) forcing him
to recreate with his known enemies who have assaulted him, and denying him sufficient
out-of-cell recreation time; (6) violating his rights under the HIPAA1 by releasing his
confidential medical information; (7) falsifying an incident report, which resulted in an
increase in the term of his prison sentence; (8) refusing to issue him grievance forms to
exhaust his administrative remedies; confiscating his legal documents; and denying him
access to the law library; (9) denying him religious meals and the right to participate in
Ramadan, while attempting to convert him to Christianity; and, (10) denying him access
to his legal counsel by confiscating legal mail sent from his attorney. For claim eleven,
Mr. Gilbert-Mitchell asserts that Defendant United States is liable “in tort” for the
constitutional deprivations committed by the other Defendants. He seeks injunctive and
monetary relief.
The United States has not waived its sovereign immunity under the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§2671-2680, for constitutional tort claims. See F.D.I.C.
v. Meyer, 510 U.S. 471, 477 (1994). Sovereign immunity also bars a Bivens-type action
against the United States. Id. at 484-85. Alternatively, to the extent Plaintiff sues the
United States under the FTCA based on the actions of the individual defendants, he
fails to allege a state law basis for holding the United States liable. See 28 U.S.C. §

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Health Insurance Portability and Accountability Act, Pub.L. 104–191, 110 Stat.1936 (1996).

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1346(b) (stating that the United States may be held liable for personal injury or loss of
property caused by a government employee under circumstances where the United
States, if a private person, would by liable to the claimant in accordance with the law of
the place where the act or omission occurred). Accordingly, the United States will be
dismissed as an improper party to this action.
The HIPAA claim will be dismissed as legally frivolous because HIPAA does not
create a private cause of action for the alleged disclosure of confidential medical
information. See Wilkerson v. Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010).
Plaintiff’s claim challenging his prison disciplinary, which resulted in an increased
term of imprisonment, are not actionable in a Bivens action, but instead must be
asserted in a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2241.
Mcintosh v. United States Parole Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997) (citing
Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)).
Mr. Gilbert-Mitchell’s eighth and tenth claims do not support arguable claims for
violations of Plaintiff’s constitutional right of access to the courts. Prisoners have a
constitutional right of access to the courts which may require that prison officials provide
prisoners with adequate law libraries or adequate assistance from persons trained in the
law. See Bounds v. Smith, 430 U.S. 817, 821, 828 (1977). Access to counsel is another
means to ensure access to the courts. See Smith v. Maschner, 899 F.2d 940, 944
(10th Cir. 1990) (citing Evans v. Moseley, 455 F.2d 1084, 1087 (10th Cir. 1972)
(prisoner's right to correspond with attorney does not extend to correspondence “on any
subject,” but only to issues implicating access to courts)). However, to state a claim for
violation of the constitutional right to access the courts, a prisoner “must demonstrate
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actual injury . . . —that is, that the prisoner was frustrated or impeded in his efforts to
pursue a nonfrivolous legal claim concerning his conviction or his conditions of
confinement.” Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010) (citing Lewis v.
Casey, 518 U.S. 343, 351–55 (1996)). Furthermore, the right of access to the courts
extends only as far as protecting an inmate's ability to prepare initial pleadings in a civil
rights action regarding his or her current confinement or in an application for a writ of
habeas corpus. See Wolff v. McDonnell, 418 U.S. 539, 576 (1974); Carper v. DeLand,
54 F.3d 613, 617 (10th Cir.1995). See also Lewis, 518 U.S. at 354 (disclaiming
statements in Bounds suggesting that the State must enable the prisoner to litigate
effectively once in court) (emphasis in the original). Here, plaintiff does not allege facts
to show that he has suffered an actual injury as a result of the confiscation of his legal
mail and legal documents, the limitations placed on his use of the grievance procedure,
and the lack of access to the law library. Although Mr. Gilbert-Mitchell asserts that his
pending actions may be dismissed as a result of Defendants’ conduct, speculation as to
what may occur in the future does not satisfy the actual injury requirement of Lewis.
Accordingly, claims eight and ten will be dismissed as legally frivolous.
Finally, Mr. Gilbert-Mitchell’s factual allegations are not specific enough to show
the personal participation of Defendant Warden Daniels in a violation of his
constitutional rights. Plaintiff was warned by Magistrate Judge Boland in the August 7
Order that personal participation by the named defendants is an essential allegation in a
civil rights action. See Kite v. Kelley, 546 F.2d 334, 338 (10th Cir. 1976). Plaintiff
therefore must show that each named Defendant caused the deprivation of a federal
right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). Moreover, a supervisor is
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only liable for a constitutional violation that he or she has caused. See Dodds v.
Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). Accordingly, 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); see also Richardson, 614 F.3d at 1200-1201
(“[D]efendant-supervisors may be liable under § 1983 [or Bivens] where an ‘affirmative’
link exists between the unconstitutional acts by their subordinates and their ‘adoption of
any plan or policy. . .–express or otherwise–showing their authorization or approval of
such ‘misconduct.’”) (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)). Supervisors
cannot be held liable merely because of their supervisory positions. See Pembaur v.
City of Cincinnati, 475 U.S. 469, 479 (1986); McKee v. Heggy, 703 F.2d 479, 483 (10th
Cir. 1983). Plaintiff seeks to hold Defendant Daniels liable based on his supervisory
position as warden of USP-Florence, which is insufficient under Bivens. Accordingly,
Defendant Daniels is an improper party to this action and will be dismissed.
Upon completion of the Court’s review pursuant to D.C.COLO.LCivR8.2.C, the
Court has determined that Mr. Gilbert-Mitchell’s remaining claims against Defendants
Allred, Newcomb, Inouye, Rodrigues, Leggitt, Montoya, and McDermott are not
appropriate for summary dismissal and that the case should be drawn to a district judge
and to a magistrate judge. See D.C.COLO.LCivR 8.2D. Accordingly, it is
ORDERED that Defendants the United States and Charlie A. Daniels are
DISMISSED as parties to this action. It is
FURTHER ORDERED that the HIPAA claim (claim six); the claim challenging
Plaintiff’s prison disciplinary conviction, which resulted in a longer prison sentence
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(claim seven); the claims asserting a violation of Plaintiff’s constitutional right of access
to the courts (claims eight and ten); and, the claim against the United States (claim
eleven), are DISMISSED. It is
FURTHER ORDERED that the retaliation and other constitutional claims against
Defendants Allred, Newcomb, Inouye, Rodrigues, Leggitt, Montoya, and McDermott are
drawn to a district judge and to a magistrate judge.
DATED at Denver, Colorado, this 22nd day of January, 2013.
BY THE COURT:

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

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