Cook v. Creany, et al

Filing 7

ORDER dismissing with prejudice Kayla Wilson, Anthony DeCesaro, and Michael Pasewark, and drawing the remaining claims to a district judge and a magistrate judge, by Judge Lewis T. Babcock on 8/28/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01792-BNB
DANNY COOK,
Plaintiff,
v.
DR. TIMOTHY CREANY,
C.O. KAYLA WILSON,
C.O. MICHAEL PASEWARK,
SGT. ROMY GRADISAR,
LT. JEFF HAWKINS, and
ANTHONY DeCESARO, Grievance Officer,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW IN PART

Plaintiff, Danny Cook, is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Fremont Correctional Facility in Cañon
City, Colorado. On July 8, 2013, Plaintiff, acting pro se, initiated this action by filing a
Letter and $350.00 as payment of the filing fee. Magistrate Judge Boyd N. Boland
entered an Order to Cure Deficiencies on July 9, 2013, and directed Plaintiff to file his
claims on a Court-approved form used in filing prisoner complaints and to pay the
balance of the $400.00 filing fee. Plaintiff has complied with the July 9 Order.
The Court must construe the Prisoner Complaint liberally because Plaintiff 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). If a complaint reasonably can be read “to state a

valid claim on which the plaintiff could prevail, [a court] should do so despite the
plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his
poor syntax and sentence construction, or his unfamiliarity with pleading requirements.”
Hall, 935 F.2d at 1110. However, a court should not act as a pro se litigant’s advocate.
See id. For the reasons stated below, the Complaint and the action will be drawn to a
district judge and to a magistrate judge in part and dismissed in part pursuant to 28
U.S.C. § 1915A.
Plaintiff asserts that his First, Fourth, Fifth, Eighth, and Fourteenth Amendments
rights have been violated because Defendants have been deliberately indifferent to his
serious medical issues, lost his personal property, and retaliated against him for filing a
grievance. Plaintiff seeks money damages.
Plaintiff’s claim against Defendants Kayla Wilson and Michael Pasewark for the
loss of his property fails for the following reasons. 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, “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), overruled on
other grounds by Clark v. Wilson, 625 F.3d 686, 691 (10th Cir. 2010); 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 post deprivation remedy if the
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grievance procedure provides a meaningful remedy. See Parratt v. Taylor, 451 U.S.
527, 539 (1981) (when impracticality of predeprivation hearing is apparent and there is
a meaningful way to assess the propriety of the State’s action after the initial taking due
process is satisfied), overruled on other grounds by Daniels v. Williams, 474 U.S. 327
(1986); see also Williams v. Morris, 697 F.2d 1349, 1351 (10th Cir. 1982). If a state
remedy exists, there is a “presumption of adequate due process” that “may stave off a
facial attack.” Freeman v. Dep’t of Corrs., 949 F.2d 360, 362 (10th Cir.1991). In order
to overcome the presumption of adequacy, the complaint must state “specific facts”
showing that the remedy was “unresponsive and inadequate.” Id.; see also Durre v.
Dempsey, 869 F.2d 543, 548 (10th Cir. 1989) (A plaintiff “must make some allegation
showing [defendants] have in fact denied him an adequate state remedy.”) Plaintiff
does not assert that the DOC grievance procedure was unresponsive or inadequate.
Therefore, Plaintiff’s property claim lacks merit, and Defendants Kayla Wilson and
Michael Pasewark will be dismissed as parties to this action.
Plaintiff’s claim against Defendant Anthony DeCesaro, a 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
v. Ortiz, 307 F. App’x. 179, 193 (10th Cir. 2009) (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.
Accordingly, it is
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ORDERED that Defendants Kayla Wilson, Michael Pasewark, and Anthony
DeCesaro are dismissed with prejudice as improper parties to this action. It is
FURTHER ORDERED that the Complaint and the remaining claims asserted
against Defendants Dr. Timothy Creany, Sergeant Romy Gradisar, and Lieutenant Jeff
Hawkins shall be drawn to a district judge pursuant to D.C.COLO.LCivR 40.1 and to a
magistrate judge.
DATED at Denver, Colorado, this 28th day of

August , 2013.

BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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