Hoeck v. Miklich et al
Filing
11
ORDER to Dismiss in Part and to Draw Case to District Judge and to Magistrate Judge. ORDERED that Defendants Clements, Timme, DeCesaro and Machin are DISMISSED. FURTHER ORDERED that the claims against Defendants Miklich, Stenzel, Proffit, Winden, Toomey and Worthen shall be drawn to a district judge and to a magistrate judge. FURTHER ORDERED that all pending motions are DENIED as moot, by Judge Lewis T. Babcock on 3/18/13. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00206-BNB
DAVID B. HOECK,
Plaintiff,
v.
TOM CLEMENTS,
RAE TIMME,
LANCE MIKLICH,
TED STENZEL,
TONY DECESARO,
DARRYL PROFFIT,
KIRK MACHIN,
MATT WINDEN,
MARY TOOMEY, and
LINDA WORTHEN,
Defendants.
ORDER TO DISMISS IN PART AND TO DRAW CASE
TO DISTRICT JUDGE AND TO MAGISTRATE JUDGE
Plaintiff, David B. Hoeck, is in the custody of the Colorado Department of
Corrections and is incarcerated currently at the Colorado Territorial Correctional Facility
(CTCF) in Canón City, Colorado. Mr. Hoeck initiated this action by filing a Prisoner
Complaint asserting a deprivation of his constitutional rights pursuant to 28 U.S.C.
§ 1343 and 42 U.S.C. § 1983. He has been granted leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915.
On January 31, 2013, Magistrate Judge Boyd N. Boland reviewed the amended
complaint and found it to be deficient because Mr. Hoeck failed to allege the personal
participation of the named Defendants in a violation of his constitutional rights.
Magistrate Judge Boland therefore ordered Plaintiff to file an amended complaint within
thirty days. Mr. Hoeck thereafter was granted an extension of time until March 12, 2013
to file his amended complaint. (See ECF No. 7). He filed an amended complaint on
March 11, 2013.
Pursuant to 28 U.S.C. § 1915A, the Court is required to review the amended
Complaint because Mr. Hoeck is a prisoner and he is seeking redress from officers or
employees of a governmental entity. Pursuant to § 1915A(b)(1), the Court is required to
dismiss the amended complaint, or any portion thereof, 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).
The Court will construe the amended complaint liberally because Mr. Hoeck 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
act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons
discussed below, the amended complaint will be dismissed, in part.
Mr. Hoeck alleges in the amended complaint that he subscribes to the “Biblical
Christian” faith. He further alleges that the Defendants are interfering with his First
Amendment right to exercise his religious beliefs by depriving him of religious meals on
holy days; not providing him a place to worship; and not recognizing his faith group.
Plaintiff alleges that his Step III grievances on these issues were denied by Defendant
DeCesaro. He further states that Defendant Miklich, the CTCF Major of Programs;
Defendant Captain Stenzel, the CTCF Captain of Programs; Matt Winden, the CTCF
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Manager of Faith and Citizen Programs; and Defendant Proffit, the Regional
Coordinator for Faith and Citizens Programs, have refused his requests to
accommodate his religious beliefs. Mr. Hoeck also alleges that Defendants Toomey
and Worthen terminated his prison employment after he refused to work on the
Sabbath. Mr. Hoeck states that he wrote letters to Warden Timme and DOC Director
Clements advising them that prison officials were hindering the practice of his religious
beliefs, but the Defendants failed to take any remedial action. He further asserts that
Defendants have denied him the equal protection of the laws because other religious
groups are recognized and accommodated at CTCF. Mr. Hoeck seeks injunctive and
declaratory relief.
Mr. Hoeck cannot maintain his claim against Defendants DOC Executive Director
Tom Clements and CTCF Warden Timme because he fails to allege facts to show their
personal participation in a violation of his constitutional rights. Plaintiff was warned by
Magistrate Judge Boland in the January 31, 2013 Order that personal participation by
the named defendants is an essential allegation in a civil rights action. See Bennett v.
Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); Kentucky v. Graham, 473 U.S. 159,
166 (1985). 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 Dodds v.
Richardson, 614 F.3d 1185, 1200-1201 (10th Cir. 2010) (“[D]efendant-supervisors may
be liable under § 1983 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
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v. Goode, 423 U.S. 362, 371 (1976)). A supervisor defendant, such as DOC Executive
Director Tom Clements or CTCF Warden Timme, may not be held liable for the
unconstitutional conduct of his subordinates on a theory of respondeat superior. See
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); see also Serna v. Colo. Dep’t of
Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006) (“Supervisors are only liable under
§ 1983 for their own culpable involvement in the violation of a person's constitutional
rights.”); Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (“§ 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.”).
Mr. Hoeck does not allege any specific facts to show that Defendant Clements or
Defendant Timme was personally involved in the alleged deprivation of his constitutional
rights. The fact that Defendants were made aware of Plaintiff’s claims in written
correspondence is an insufficient basis to impose § 1983 liability. See Davis v. Ark.
Valley Corr. Facility, No. 02-1486, 99 F. App’x. 838, 843 (10th Cir. May 20, 2004)
(unpublished) (sending “correspondence [to high-ranking prison official] outlining [a]
complaint . . . without more, does not sufficiently implicate the [supervisory official]
under § 1983”). Accordingly, Defendants Clements and Timme are improper parties to
this action and will be dismissed.
Plaintiff’s claim against Defendant DeCesaro, the Step III grievance officer, fails
because “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); see also Whitington
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v. Ortiz, No. 07-1425, 307 F. App’x. 179, 193 (10th Cir. Jan. 13, 2009) (unpublished)
(stating that “the denial of the grievances alone is insufficient to establish personal
participation in the alleged constitutional violations.”) (internal quotation marks and
citation omitted). Defendant DeCesaro therefore is an improper party to this action and
will be dismissed.
Finally, Mr. Hoeck fails to state an arguable claim against Defendant Machin for
interference with his First Amendment free exercise rights. Plaintiff alleges only that
Machin, a corrections officer, informed DOC Grievance Officer DeCesaro that he had
spoken with Defendant Proffit concerning the performance of linen exchanges on the
Sabbath and Proffit agreed with Plaintiff’s position. (ECF No. 10, at 7-8). Mr. Hoeck
does not allege any facts that would implicate Defendant Machin in a deprivation of his
constitutional rights. As such, Defendant Machin is an improper party to this action and
will be dismissed.
The Court will not address at this time the merits of Mr. Hoeck’s constitutional
claims against Defendants Miklich, Stenzel, Proffit, Winden, Toomey, and Worthen.
Instead, the action will be drawn to a district judge and to a magistrate judge as
provided in D.C.COLO.LCivR 8.2D because the Court has completed its review
pursuant to D.C.COLO.LCivR 8.2C. Accordingly, it is
ORDERED that Defendants Clements, Timme, DeCesaro and Machin are
DISMISSED for Plaintiff’s failure to allege those Defendants’ personal participation in an
alleged deprivation of Mr. Hoeck’s constitutional rights. It is
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FURTHER ORDERED that the claims against Defendants Miklich, Stenzel,
Proffit, Winden, Toomey and Worthen shall be drawn to a district judge and to a
magistrate judge. It is
FURTHER ORDERED that all pending motions are DENIED as moot.
DATED at Denver, Colorado, this 18th
day of
March
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
6
, 2013.
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