Sayed v. Tafoya et al
Filing
12
ORDER to Dismiss in Part and to Draw Case by Judge Lewis T. Babcock on 1/30/14. Defendants Patrick, Tafoya, and Brown are dismissed. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02961-BNB
HAZHAR A. SAYED,
Plaintiff,
v.
SGT. TAFOYA, Mail Room C/O, F.C.F. (individual capacity),
SGT. PATRICK, Mail Room C/O, F.C.F. (individual capacity),
YEVETTE BROWN, F.C.F., Law Library C/O (individual capacity), and
JOHN/JANE DOE, F.C.F., Dental Officer/Dentist (individual capacity),
Defendants.
ORDER TO DISMISS IN PART AND TO DRAW
CASE TO A DISTRICT JUDGE AND MAGISTRATE JUDGE
Plaintiff, Hazhar A. Sayed, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Fremont Correctional
Facility in Cañon City, Colorado. He submitted pro se a Prisoner Complaint (ECF No.
1) pursuant to 42 U.S.C. § 1983 and a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 6).
Mr. Sayed 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).
Mr. Sayed 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 the Prisoner Complaint liberally because Mr. Sayed 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 Prisoner Complaint will be dismissed in part pursuant to 28 U.S.C. §
1915(e)(2)(B) as legally frivolous.
Claim One
As his first claim, Mr. Sayed alleges that in February 2013, Defendants Patrick
and Tafoya, who work in the Fremont Correctional Facility mail room, rejected and
returned to the sender a blank form for legal use mailed to Mr. Sayed by an inmate at
another correctional facility. Mr. Sayed contends that the form was rejected as the other
inmate’s property. On the basis of these allegations, Mr. Sayed contends his First
Amendment right to communicate freely with other persons was violated.
Mr. Sayed’s first claim is without merit. There is no constitutional right to inmateto-inmate legal communications. Yabanez v. Milyard, No. 10-cv-02234-WYD-CBS,
2011 WL 4383123, at *6 (D. Colo. Sept. 20, 2011) (unpublished) (citing Stine v. Collins,
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No. 08-cv-00298-BNB, 2008 WL 596807, at *1, (D. Colo. Mar. 4, 2008) (unpublished).
In Stine, the Court relied on Shaw v. Murphy, 532 U.S. 223, 228 (2001), for the
proposition that inmate-to-inmate correspondence that includes legal assistance is not
entitled to more First Amendment protection than correspondence without any such
legal assistance, and to Turner v. Safley, 482 U.S. 78 (1987), for the proposition that
regulating inmate-to-inmate communication is “‘reasonably related to legitimate
penological interests.’” Stine, 2008 WL 596807, at *1. Claim one will be dismissed as
legally frivolous.
Claim Two
As his second claim, Mr. Sayed alleges that in July 2013, he requested and was
denied law library access with a co-inmate who was assisting him in a legal matter by
Defendant Yevette Brown, Fremont Correctional Facility law librarian. As a result, he
contends he was denied access to the courts and the ability to communicate with others
in violation of his First Amendment rights.
Mr. Sayed’s second claim also is without merit. The United States Court of
Appeals for the Tenth Circuit “has made clear that an inmate ‘does not have a protected
interest in providing legal representation to other inmates.’” Peterson v. Shanks, 149
F.3d 1140, 1144 (10th Cir. 1998) (citing Smith v. Maschner, 899 F.2d 940, 950 (10th
Cir. 1990). More importantly for purposes of the instant action, “[p]rison inmates do not
possess the right to a particular prisoner’s help in preparing their legal materials, so long
as prison officials make other assistance available.” Smith, 899 F.2d 950. A prisoner
must demonstrate actual injury from interference with his access to the courts--that is,
that the prisoner was frustrated or impeded in his efforts to pursue a nonfrivolous legal
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claim concerning his conviction or his conditions of confinement. See Lewis v. Casey,
518 U.S. 343, 351-55 (1996). Mr. Sayed’s access-to-the-courts allegations against Ms.
Brown fail this test because Plaintiff does not allege he was impeded in his ability to file
his Prisoner Complaint and pursue his claims in this action. Mr. Sayed’s second claim
will be dismissed as legally frivolous.
Claim Three
As his third claim, Mr. Sayed alleges that in May 2012 he requested dental
services for ongoing dental issues and to have his teeth cleaned. He contends that the
unknown Defendant dentist or medical officer rejected his request because he had his
teeth cleaned approximately nine months earlier and was ineligible for another teeth
cleaning until twelve months had passed, and failed to address the request to be treated
for ongoing dental issues. On the basis of these allegations, he contends he was
subjected to deliberate indifference to a serious medical need in violation of his Eighth
Amendment rights. This claim will be drawn to a district judge and a magistrate judge.
Accordingly, it is
ORDERED that claim one asserted against Defendants Patrick and Tafoya, and
claim two asserted against Defendant, are dismissed as legally frivolous pursuant to 28
U.S.C. § 1915(e)(2)(B). It is
FURTHER ORDERED that Defendants Patrick, Tafoya, and Brown are
dismissed as parties to this action. It is
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FURTHER ORDERED that claim three asserted against the unnamed dental
officer or dentist is are drawn to a district judge and a magistrate judge. It is
FURTHER ORDERED that the only remaining Defendant is John/Jane Doe, the
dental officer/dentist for the Fremont Correctional Facility.
DATED January 30, 2014, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court
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