Patterson v. Bonner

Filing 14

ORDER granting 5 motion to amend the brief, overruling 12 objection, dismissing claims, and denying leave to proceed in forma pauperis on appeal, 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-02009-BNB
DARRELL ERIC PATTERSON,
Plaintiff,
v.
BOBBY BONNER, Warden KCCC/CCA,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Darrell Eric Patterson, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the Kit Carson
Correctional Center in Burlington, Colorado. Mr. Patterson, acting pro se, filed a
Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983, the Fair Labor Standards
Act (FLSA), and various other statutes. He also filed a supporting brief (ECF No. 4), a
motion to amend the brief (ECF No. 5), and an amendment (ECF No.6). The motion to
amend will be granted.
In his opening brief, Mr. Patterson asks for money damages, and in the complaint
he seeks back pay and wages; habeas corpus relief, i.e., his release from prison; or
injunctive relief, i.e., the production of legally valid documents for the detention of him
and his property. He also filed an objection (ECF No. 12) to the Court’s reference to the
fact that he is in DOC custody contained in the order to cure (ECF No. 10) filed July 30,
2013. Despite his allegations otherwise, Mr. Patterson is in DOC custody, and his
objection will be overruled.

Mr. Patterson has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915. 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. Patterson 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, 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 Mr. Patterson’s complaint liberally because he 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). If the complaint reasonably can be read
“to state a valid claim on which the plaintiff could prevail, [the 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, the Court does not act as an

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advocate for a pro se litigant. See id. For the reasons stated below, the complaint and
the action will be dismissed.
Mr. Patterson challenges the legality of his conviction and sentence on the basis
that the prison where he is incarcerated took possession of him,“sui juris (flesh & blood
Man),” absent legally valid documents and exploited him to work without pay in violation
of the FLSA on behalf of his “employer,” the Corrections Corporation of America (CCA).
ECF No. 1 at 4. He contends CCA owns and operates the Kit Carson Correctional
Center pursuant to a contract with the DOC. ECF No. 12 at 1. It is unclear whether his
reference to his “personal and intellectual property,” ECF No. 1 at 4, seized by CCA
refers to himself or to inanimate property. The Court will discuss both.
Mr. Patterson’s request for relief in the form of back pay and wages is based on
his claims of an FLSA violation. To the extent Mr. Patterson attacks his prison
employment pursuant to the FLSA, the claims are without merit. It is well-settled in the
Tenth Circuit that a prison inmate is not an employee under Title VII in connection with
job assignments. See Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1994). The
Tenth Circuit also has stated, in examining whether state prisoners were employees
under the FLSA, that the economic reality test for determining whether a person is an
employee within the meaning of the FLSA was not intended to apply to work performed
in prison by a prison inmate. Franks v. Oklahoma State Industries, 7 F.3d 971, 973
(10th Cir. 1993). Prisoners assigned to private industry operating on prison premises
also are not employees under the FLSA. See Rhodes v. Schaefer, No. 98-3323-GTV,
2002 WL 826471, at *4 (D. Kan. Mar. 20, 2002) (unpublished). Therefore, Mr.
Patterson’s FLSA claims are meritless and will be dismissed as legally frivolous.

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Mr. Patterson’s claim under the Fourteenth Amendment that Defendant is
confiscating his inanimate personal and intellectual property lacks merit. 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, “the
United States Supreme Court has held that 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).
Further, a prison grievance procedure is an adequate postdeprivation remedy if
the grievance procedure provides a meaningful remedy. See Hudson, 468 at 536 &
n.15; Williams v. Morris, 697 F.2d 1349, 1351 (10th Cir. 1982). Mr. Patterson alleges
that he has exhausted available administrative remedies. ECF No. 1 at 8. The fact that
Mr. Patterson’s administrative grievances may not have been successful, by itself, does
not mean that the grievance procedure was not an adequate remedy. To the extent Mr.
Patterson may be arguing that the DOC grievance procedure was not available to him,
the Court notes Mr. Patterson also has an adequate remedy available to him in state
court under state law. See, e.g., Cooper v. Belcher, 2010 WL 3359709, at *15 (D. Colo.
Aug. 25, 2010) (unpublished) (noting that "[a]dequate state remedies are not limited to
the filing of grievances, but include filing complaints in state court."). The inanimate
property deprivation claim will be dismissed as legally frivolous.

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Mr. Patterson’s sole remedy for the dismissal of his state court criminal
conviction and sentence and his release from custody is a writ of habeas corpus, see
Preiser v. Rodriguez, 411 U.S. 475, 504 (1973), after he exhausts state court remedies.
See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). Habeas corpus claims
may not be raised in a § 1983 action. Rather, they must be pursued in an application
for writ of habeas corpus pursuant to 28 U.S.C. § 2254, see Preiser v. Rodriguez, 411
U.S. 475, 504 (1973), after exhaustion of state remedies, see § 2254(b)(1)(A); Preiser,
411 U.S. at 499 n.14. Mr. Patterson does not allege, and nothing in the Court file
indicates, he has invalidated his conviction through a writ of habeas corpus.
To the extent Mr. Patterson is challenging the basis for and validity of his criminal
conviction and sentence, the claims must be dismissed as barred by the rule in Heck v.
Humphrey, 512 U.S. 477 (1994). Pursuant to Heck, if a judgment for damages
necessarily would imply the invalidity of a criminal conviction or sentence, the action
does not arise until the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by an authorized state tribunal, or called
into question by the issuance of a federal habeas writ. See Heck, 512 U.S. at 486-87.
As previously stated, Mr. Patterson does allege that he has invalidated his conviction
and sentence through a writ of habeas corpus.
Although Mr. Patterson’s claims for damages, included in his opening brief, may
be asserted in a § 1983 action, Heck applies “when the concerns underlying Heck
exist,” which include “those claims that would necessarily imply the invalidity of [the]
conviction.” See Lawson v. Engleman, 67 Fed. App’x 524, 526 n.2 (10th Cir. 2003)
(unpublished) (citing Beck v. City of Muskogee Police Depot, 195 F.3d 553, 557 (10th

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Cir. 1999)). “[A] state prisoner’s § 1983 action is barred (absent prior invalidation) – no
matter the relief sought (damages or equitable relief), no matter the target of the
prisoner’s suit (state conduct leading to conviction or internal prison proceedings) – if
success in that action would necessarily demonstrate the invalidity of confinement or its
duration”) (emphasis in original). Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).
Because of the nature of Mr. Patterson’s allegations, his request for injunctive
relief necessarily implies the invalidity of his conviction. See Lawson, 67 Fed. App’x at
526 n.2 (citing Kutzner v. Montgomery Cnty., 303 F.3d 339, 341 (5th Cir. 2002) (noting
that claims seeking to attack the fact or duration of confinement “must be brought as
habeas corpus petitions and not under § 1983"). Success on Mr. Patterson’s claims
would necessarily spell speedier release or demonstrate the invalidity of his
confinement or its duration.
Therefore, the Court finds that Mr. Patterson’s claims challenging the validity of
his state court criminal conviction and sentence are barred by the rule in Heck. The
dismissal will be without prejudice. See Fottler v. United States, 73 F.3d 1064, 1065
(10th Cir. 1996). However, a Heck dismissal counts as a strike under § 1915(g). See
Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1177-78 (10th Cir. 2011).
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Patterson files a notice of appeal he also must pay the full $455.00
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.

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P. 24.
Accordingly, it is
ORDERED that the motion to amend the brief (ECF No. 5) filed on July 29, 2013,
is granted. It is
FURTHER ORDERED that the objection (ECF No. 12) filed on August 12, 2013,
is overruled. It is
FURTHER ORDERED that Plaintiff’s Fourteenth Amendment due process claims
for the deprivation of inanimate property and claims pursuant to the Fair Labor
Standards Act for back pay and wages are dismissed as legally frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B). It is
FURTHER ORDERED that Plaintiff’s claims challenging his conviction and
sentence are dismissed without prejudice as barred by the rule in Heck v. Humphrey,
512 U.S. 477 (1994). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any other pending motions are denied as moot.
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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