Allen v. Executive Director of CDOC et al

Filing 7

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/9/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03002-BNB
JEFFERSON ALLEN,
Plaintiff,
v.
EXECUTIVE DIRECTOR OF CDOC,
RAE TIMME,
FREDRIC GIFFORD,
MARY ANN ALDRICH,
LANCE MIKLICH,
VALARIE CRAIG,
KEN TOPLISS,
PAMELA BENTLEY,
MR. SALAMON,
COLORADO DEPARTMENT OF CORRECTIONS,
COLORADO TERRITORIAL CORRECTIONAL FACILITY,
TOM JORDAN, and
SHANNA RICHARDSON,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Jefferson Allen, is in the custody of the Colorado Department of
Corrections (“CDOC”) at the Colorado Territorial Correctional Facility (“CTCF”). He
initiated this action by filing, pro se, a Prisoner Complaint alleging deprivations of his
constitutional rights pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983.
On November 4, 2013, Magistrate Judge Boyd N. Boland reviewed the
Complaint and determined that it was deficient because Defendants CDOC and CTCF
enjoyed Eleventh Amendment immunity from suit; Plaintiff failed to allege the personal
participation of each named Plaintiff in a deprivation of his constitutional rights; and,

some of Plaintiff’s claims appeared to be frivolous, as pleaded. Mr. Allen filed an
Amended Complaint on December 4, 2013 [Doc. # 6], that is identical to the original
Complaint.
Mr. Allen has been granted leave to proceed without payment of an initial partial
filing fee pursuant to the federal in forma pauperis statute, 28 U.S.C. § 1915 (2013).
Subsection (e)(2)(B) of § 1915 requires a court to dismiss sua sponte an action at any
time if the action 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. Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The Court must construe the Amended Complaint liberally because Mr. Allen 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 Court will dismiss the Amended Complaint and this action.
Mr. Allen alleges in the Amended Complaint that on March 8, 2013, he was
terminated from his prison job in Food Services by Defendants Bentley, Richardson,
and Lt. Williams, and issued an incident report for Failure to Work and Disruptive
Behavior. He alleges that Defendant Craig reviewed the incident report and approved it
for prosecution. Plaintiff asserts that Defendants Cantin, Salamon, Jordan, and Vigil
placed him on restricted privileges without a hearing and that the discipline was upheld
by Defendants Miklich and Aldrich. Mr. Allen further alleges that he was convicted of
the disciplinary infractions by Defendant Disciplinary Hearing Officer Topliss, who
sanctioned him with loss of privileges and earned time credits. Plaintiff claims that the
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CDOC administrative regulation authorizing the placement of an inmate on restricted
privileges status for refusing to work or participate in programs is contrary to a Colorado
statute. He alleges that Defendants Timme and Gifford are aware that CTCF officials
enforced the unlawful policy against him, but the Defendants failed to take any remedial
action. Mr. Allen further claims that the same evidence was used to convict him of a
disciplinary hearing and to justify his placement on restricted privileges status, in
violation of the constitutional prohibition against double jeopardy; he was denied due
process because he was placed on restricted privileges for up to 90 days without a
hearing and in violation of CDOC administrative regulations; and he was denied equal
protection because restricted privileges status is not applied to all offenders equally.
In addition, Mr. Allen makes conclusory allegations in the Amended Complaint
about several incident reports that were issued against him between August 2012 and
August 2013 for which he was sanctioned with loss of privileges. He also makes
conclusory assertions that prison officials are forcing him to work at prison jobs knowing
that he has medical and psychological impairments that limit his ability to function
properly. Finally, Mr. Allen makes vague allegations that he has been “threatened,
teased, verbally and mentally abused, discriminated against and completely mistreated
by staff,” [Doc. # 1, at 8], and has been denied recreation [id. at 6]. He seeks monetary
and injunctive relief and the restoration of earned time credits.
Mr. Allen’s claims against the CDOC and the CTCF are barred by the Eleventh
Amendment. Eleventh Amendment immunity extends to states and state agencies
deemed “arms of the state” that have not waived their immunity, regardless of the relief
sought. Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252–53 (10th Cir.
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2007). The CDOC is an agency of Colorado that is entitled to Eleventh Amendment
immunity. See Griess v. Colorado, 841 F.2d 1042, 1044–45 (10th Cir. 1988). Congress
did not abrogate Eleventh Amendment immunity through Section 1983. See Quern v.
Jordan, 440 U.S. 332, 345 (1979). Accordingly, the CDOC ad CTCF are improper
parties to this action and will be dismissed.
The Amended Complaint also fails to allege specific facts to show the personal
participation of Defendants Timme, the CTCF warden, and Defendant Gifford, the
assistant warden, in an alleged deprivation of Mr. Allen’s constitutional rights. Personal
participation is an essential element of 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).
Supervisors can only be held liable for their own deliberate intentional acts. See
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Dodds v. Richardson, 614 F.3d 1185, 12001201 (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 v. Goode, 423 U.S. 362, 371 (1976)).
In the Amended Complaint, Mr. Allen alleges that Defendants Timme and Gifford
were responsible for enforcing CTCF’s policies and procedures, were “made aware of
the problems, [were] in a position of authority to correct them[,] and failed to take the
reasonable steps necessary to do so.” [Doc. # 6, at 1]. These vague and conclusory
allegations are not sufficient to demonstrate that either of these Defendants personally
participated in the asserted constitutional violations. Therefore, Defendants Timme and
Gifford will be dismissed as parties to this action for lack of personal participation.
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The Court next addresses Mr. Vigil’s claims that his due process rights were
violated in connection with several prison disciplinary actions. The threshold issue is
whether Mr. Vigil alleges facts that implicate a constitutionally protected liberty interest.
See Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974). A liberty interest protected by
due process may arise under the Due Process Clause itself or state law. See Sandin v.
Conner, 515 U.S. 472, 483-84 (1995).
Prison discipline does not implicate a liberty interest that arises under the Due
Process Clause itself because prisoners are not entitled to any particular degree of
liberty. See Meachum v. Fano, 427 U.S. 215, 225 (1976); Templeman v. Gunter, 16
F.3d 367, 369 (10th Cir. 1994). In short, the Due Process Clause does not protect
every change in the conditions of confinement that has a substantial adverse impact on
the prisoner. See Meachum, 427 U.S. at 224. Therefore, the only pertinent question is
whether the disciplinary convictions implicate a protected liberty interest that arises
under state law. “For inmates being punished for misconduct, a liberty interest exists
only when the penalty lengthens the confinement or involves an ‘atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.’” Meek v.
Jordan, No. 13-1249, 2013 WL 4427200 at *2 (10th Cir. Aug. 20, 2013) (unpublished)
(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Otherwise, an inmate must
show that the punishment will “inevitably affect the duration of his sentence.” Sandin,
515 U.S. at 487. Relevant factors to be considered in determining whether certain
conditions of confinement impose atypical and significant hardship in relation to the
ordinary incidents of prison life include whether the conditions relate to and further a
legitimate penological interest, are extreme, increase the duration of confinement, and
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are indeterminate. See DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1342 (10th Cir.
2007).
That Mr. Allen lost certain privileges and was placed on restricted privileges
status for periods of less than ninety days did not subject him to an atypical and
significant hardship in relation to the ordinary incidents of prison life. See, e.g., Grady v.
Garcia, No. 12-1151, 506 F. App’x 812, 814 (10th Cir. Jan. 3, 2013) (unpublished)
(inmates placement on restricted privileged status for 105 days did not constitute an
atypical and significant hardship when compared to the ordinary incidents of prison life);
Meek, 2013 WL 4427200 at **2-3 (finding that sixty days in punitive segregation as a
disciplinary sanction did not implicate a protected liberty interest).
Furthermore, the forfeiture of earned time credits in conjunction with a prison
disciplinary conviction does not implicate a constitutionally protected liberty interest
because generally earned time credits do not count as service of the inmate’s sentence,
but rather serve only to establish parole eligibility. See Kailey v. Price, No. 12-1276,
497 F. App’x 835, 835-36 (10th Cir. Sept. 27, 2013) (unpublished) (citing Jones v.
Martinez, 799 P.2d 385, 387–88 & n. 5 (Colo.1990) (collecting cases)) and Thiret v.
Kautzky, 792 P.2d 801, 805–07 (Colo.1990) (only those inmates sentenced to a crime
committed after July 1, 1979, but before July 1, 1985, are entitled to mandatory parole;
for other offenders, parole is discretionary). The loss of earned time credits for an
inmate subject to discretionary parole does not inevitably affect the length of his
confinement because the decision to release an inmate on parole “rests on a myriad of
considerations.” Sandin, 515 U.S. at 487.

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If Mr. Allen is within the category of offenders entitled to mandatory parole, he
may not seek restoration of the forfeited earned time credits in this § 1983 action.
Instead, he must first pursue the due process claim in a separate habeas corpus
proceeding under 28 U.S.C. § 2241. See Muhammad v. Close, 540 U.S. 749, 750-51
(2004) (per curiam) (discussing Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards
v. Balisok, 520 U.S. 641 (1997)); see also Brown v. Smith, 828 F.2d 1493, 1495 (10th
Cir. 1987) (holding that a 28 U.S.C. § 2241 habeas petition is the appropriate means by
which to seek restoration of good time credits rescinded at a disciplinary hearing).
To the extent Mr. Allen asserts a claim under § 1983 based on the loss of his
prison job, the claim is legally frivolous. An inmate does not have a constitutionallyprotected liberty interest in prison employment. Penrod v. Zavaras, 94 F.3d 1399, 1407
(10th Cir. 1996).
Mr. Vigil’s double jeopardy claim, in which he contends that the same evidence
was used both to convict him of a disciplinary violation and justify his placement on
restricted privileges status, is legally frivolous and must be dismissed. “Because the
Double Jeopardy clause only applies to proceedings that are essentially criminal in
nature, it is well established that prison disciplinary sanctions . . . do not implicate
double jeopardy protections.” Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006)
(internal quotation marks and citations omitted).
Mr. Allen’s equal protection claim is lacking because he does not allege specific
facts to show that he was treated differently than a similarly situated inmate. See City of
Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Penrod, 94 F.3d at
1406. Magistrate Judge Boland warned Plaintiff in the November 12 Order that this

claim, as pleaded, was deficient, and afforded him an opportunity to allege additional
facts in support of the claim. Accordingly, the equal protection claim will be dismissed
as legally frivolous. See Meek, 2013 WL 4427200, at *2 (dismissing equal protection
claim as legally frivolous where plaintiff’s conclusory allegations did “not contain
sufficient facts to create a plausible right to relief”).
Finally, Mr. Allen’s allegations that prison officials knowingly violated his medical
and psychological impairments in placing him in certain prison jobs appear to be
asserted at his case managers, Defendants Salamon, Jordan, and Vigil. [Doc. # 6, at 45]. Magistrate Judge Boland recognized in the November 12 Order that these
allegations could implicate the Eighth Amendment. See Key v. McLaughlin, 2013 WL
1507950 (D. Colo. March 19, 2013) (stating that “[a]n inmate's allegations that prison
officials knowingly forced him to perform medically inappropriate work may implicate the
Eighth Amendment” and collecting cases). However, Magistrate Judge Boland advised
Plaintiff in the November 12 Order that his factual allegations in support of a potential
constitutional claim are vague and conclusory, as are his allegations that he has been
“threatened, teased, verbally and mentally abused, discriminated against and
completely mistreated by staff” [Doc. # 1, at 8], and that he has been denied recreation
time [id. at 6]. Mr. Allen has not asserted any additional factual allegations in the
Amended Complaint.
Magistrate Judge Boland reminded Mr. Allen in the November 12 Order that to
state a claim for relief in federal court, the plaintiff’s "complaint must explain what each
defendant did to him or her; when the defendant did it; how the defendant’s action
harmed him or her; and, what specific legal right the plaintiff believes the defendant
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violated." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir.
2007). A pro se litigant’s vague and conclusory allegations that his federal
constitutional rights have been violated does not entitle the litigant to a day in court
regardless of how liberally the court construes such pleadings. See Ketchum v. Cruz,
775 F. Supp. 1399, 1403 (D. Colo. 1991), aff’d, 961 F.2d 916 (10th Cir. 1992). “[I]n
analyzing the sufficiency of the plaintiff’s complaint, the court need accept as true only
the plaintiff’s well-pleaded factual contentions, not his conclusory allegations.” Hall, 935
F.2d at 1110. Whatever claim or claims Mr. Allen may intend to assert based on these
allegations referenced in the preceding paragraph will be dismissed as legally frivolous
because the claims are vague. Accordingly, it is
ORDERED that the Amended Complaint and this action are dismissed as legally
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). To the extent Mr. Allen is within the
category of offenders entitled to mandatory parole, he may seek restoration of any
forfeited earned time credits in a habeas corpus proceeding under 28 U.S.C. § 2241. It
is
FURTHER ORDERED that in forma pauperis status will be denied for the
purpose of appeal. 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. See Coppedge v. United
States, 369 U.S. 438 (1962). If Plaintiff files a notice of appeal he also must pay the full

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$505 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. P. 24.
DATED at Denver, Colorado, this

9th

day of

December

BY THE COURT:

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

10

, 2013.