Dmytryszyn v. Clements et al

Filing 30

ORDER to Dismiss in Part and to Draw Case by Judge Lewis T. Babcock on 11/7/13. Defendant Jerri Macintosh is dismissed. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-03241-BNB

ADAM DMYTRYSZYN,
Plaintiff,
v.
TOM CLEMENTS, Executive Director,
LIEUTENANT BERNADETTE SCOTT,
CAPTAIN T. SCOTT,
LIEUTENANT MAGELSON,
MAJOR BILDERAVA,
CAPTAIN BOLT,
SUPERINTENDENT JAMES FALK,
LIEUTENANT JERRI MACINTOSH, and
SERGEANT STEPHEN LADD,
Defendants.

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

Plaintiff, Adam Dmytryszyn, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the correctional center in
Sterling, Colorado. On December 12, 2012, he submitted pro se a Prisoner’s Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3) and a
Prisoner Complaint (ECF No. 1) for money damages and declaratory and injunctive
relief.
On December 12 he also submitted a motion for temporary restraining order and
preliminary injunction (ECF No. 4) and supporting brief (ECF No. 5). The Court denied
the motion on December 17, 2012. See ECF No. 9. On January 2, 2013, Mr.

Dmytryszyn appealed (ECF No. 10) from the December 17 order to the United States
Court of Appeals for the Tenth Circuit (Tenth Circuit). On June 11, 2013, the Tenth
Circuit affirmed the December 17 order. See ECF No. 19.
On June 26, 2013, Magistrate Judge Boyd N. Boland entered an order (ECF No.
20) directing Mr. Dmytryszyn to file an amended Prisoner Complaint that asserted the
personal participation of each named defendant in the alleged constitutional violations
and complied with the pleading requirements of Rule 8 of the Federal Rules of Civil
Procedure. On August 22, 2013, after being granted an extension of time, Mr.
Dmytryszyn filed an amended Prisoner Complaint (ECF No. 28) for money damages
and injunctive and declaratory relief.
Mr. Dmytryszyn has been granted leave to proceed pursuant to the federal in
forma pauperis statute, 28 U.S.C. § 1915, without payment of an initial partial filing fee.
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). Under §
1983, a plaintiff must allege that the defendants have violated his or her rights under the
Constitution and laws of the United States while they acted under color of state law.
Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970).
Mr. Dmytryszyn 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,
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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 the amended complaint liberally because Mr.
Dmytryszyn is not represented by an attorney. 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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For
the reasons stated below, the amended complaint will be dismissed in part as legally
frivolous.
Mr. Dmytryszyn complains that a piece of his incoming legal mail was opened
and the publication contained within, a United States Department of Justice (DOJ)
report titled “Eyewitness Evidence: A Guide for Law Enforcement,” was censored by
prison officials who confiscated the publication as a threat to prisoner safety and
security. Mr. Dmytryszyn alleges that the publication provides national guidelines for
police investigators to reduce the likelihood of wrongful convictions. He contends he
needed the publication to help him research and prepare a state motion for
postconviction relief by May 11, 2013, to challenge his state-court menacing conviction.
He argues he intended to assert claims of outrageous government conduct and an
unfair trial “based on the police officer’s improper handling of the eyewitnesses.” ECF
No. 28 at 7. He also contends that, because of the publication’s censorship, he was
delayed in filing his postconviction motion in state court and may be time-barred from
seeking federal habeas review of his conviction and sentence if the one-year limitations
period for federal habeas review has expired.
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On the basis of these allegations he asserts four claims of violations of his First
and Fourteenth amendment rights, including rights to free speech and privileged
correspondence (claim one); rights to free speech and freedom from censorship (claim
two); right of access to the courts (claim three); and rights to privileged correspondence
and access to the courts (claim four). Mr. Dmytryszyn is suing the late Tom Clements
for instituting and enforcing the prison’s censorship policy, Sergeant Stephen Ladd for
confiscating the DOJ report as nonlegal mail, and the following individuals as members
of the prison reading committee who censored the report: Lieutenant Bernadette Scott,
Captain T. Scott, Lieutenant Magelson, Major Bilderava, and Captain Bolt. He is suing
James Falk, prison superintendent, for upholding the reading committee’s decision.
The claims against these Defendants will be drawn to a district judge and a magistrate
judge.
Finally, Mr. Dmytryszyn is suing Lieutenant Jerri MacIntosh for denying on March
29, 2013, the grievance he filed concerning the incident. Such allegations are not
sufficient to hold Ms. MacIntosh liable under § 1983. “[A] denial of a grievance, by itself
without any connection to the violation of constitutional rights alleged by plaintiff, does
not establish personal participation under § 1983.” Gallagher v. Shelton, 587 F.3d
1063, 1069 (10th Cir. 2009). Therefore, the claims against Ms. MacIntosh will be
dismissed as legally frivolous pursuant to § 1915(e)(2)(B).
Accordingly, it is
ORDERED that the complaint and action are dismissed in part pursuant to 28
U.S.C. § 1915(e)(2)(B) as legally frivolous. It is
FURTHER ORDERED that the claims asserted against Defendant Lieutenant
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Jerri MacIntosh are dismissed pursuant to § 1915(e)(2)(B) as legally frivolous, and she
is removed as a party to this action. It is
FURTHER ORDERED that the remaining claims against the remaining
Defendants are drawn to a district judge and a magistrate judge. The remaining
Defendants are the late Tom Clements, Sergeant Stephen Ladd, Lieutenant Bernadette
Scott, Captain T. Scott, Lieutenant Magelson, Major Bilderava, Captain Bolt, and
Superintendent James Falk.
DATED at Denver, Colorado, this 7th day of

November

, 2013.

BY THE COURT:

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

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