Myers v. Bureau of Prisons Mailroom Staff et al

Filing 12

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/18/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03491-BNB
DAVID J. MYERS,
Plaintiff,
v.
UNKNOWN UNIDENTIFIED MAILROOM PERSONNEL OF THE BUREAU OF
PRISONS MAILROOM STAFF AT FCI-ENGLEWOOD, (Individual Capacities)
(Individuals Unknown and Unidentified at time of Filing),
MR. K. MORGAN, (Individual Capacity) (First Name Unknown to Plaintiff at time of
Filing),
MRS. R. HUFNAGLE, (Individual Capacity) (First Name Unknown to Plaintiff at the time
of Filing),
MR. RENE GARCIA, (Individual Capacity),
MR. PAUL LAIRD, (Individual Capacity), and
MR. HARRELL WATTS, (Individual Capacity)
Defendants.

ORDER OF DISMISSAL

Plaintiff, David J. Myers, is a prisoner in the custody of the Federal Bureau of
Prisons (BOP) at the Federal Correctional Institution at Englewood, Colorado (FCIEnglewood). Mr. Myers initiated this action by filing pro se a complaint (ECF No. 1). On
February 6, 2014, he filed on the proper form a Prisoner Complaint (ECF No. 8).
On February 10, 2014, Magistrate Judge Boyd N. Boland entered an order
directing Mr. Myers to file a second amended complaint that clarifies the claims he is
asserting in this action. On March 7, 2014, Mr. Myers filed an amended Prisoner
Complaint (ECF No. 11) pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), claiming his rights under the United States

Constitution have been violated. Although Mr. Myers also lists 42 U.S.C. §§ 1981,
1985, and 1986 in the jurisdiction portion of the amended Prisoner Complaint (see ECF
No. 11 at 4), he does not assert any claims pursuant to those statutes. He seeks
damages as relief.
The Court must review the claims Mr. Myer asserts in the amended Prisoner
Complaint because he is a prisoner and he is seeking redress from officers or
employees of a governmental entity. See 28 U.S.C. § 1915A. Pursuant to §
1915A(b)(1), the Court is required to dismiss the amended Prisoner Complaint, or any
portion of the amended Prisoner Complaint, 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). For the reasons stated below, the Court will dismiss the
action as legally frivolous.
The Court must construe the amended Prisoner Complaint liberally because Mr.
Myers 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 amended Prisoner
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 should not be an advocate for a pro se litigant. See id.
Mr. Myers asserts eleven claims for relief in the amended Prisoner Complaint,
each of which arises out of his efforts to utilize the BOP administrative remedy
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procedure. Construing the amended Prisoner Complaint liberally, Mr. Myers contends
in his first ten claims that Defendants violated his constitutional right to seek redress of
grievances by misplacing, stealing, denying, or failing to respond to his administrative
grievances and appeals. Mr. Myers contends in his eleventh claim for relief that
Defendants violated his constitutional right to due process between August 24, 2012,
and May 23, 2013, because “nothing has thus far been corrected or remedied to [his]
satisfaction” with respect to his administrative grievances and appeals. (ECF No. 11 at
15.)
“Under Bivens, an individual has a cause of action against a federal official in his
individual capacity for damages arising out of the official’s violation of the United States
Constitution under color of federal law or authority.” See Dry v. United States, 235 F.3d
1249, 1255 (10th Cir. 2000) (emphasis in original removed). It is clear that Mr. Myers is
seeking damages from federal officials in their individual capacities. However, he fails
to allege facts that support an arguable constitutional violation.
The essence of the claims Mr. Myers asserts in the amended Prisoner Complaint
is either that he was prevented from exhausting administrative remedies or that he was
denied the administrative remedies he sought. Mr. Myers fails to demonstrate a
constitutional violation with respect to these claims because “there is no constitutional
right to participate in grievance proceedings.” Adams v. Rice, 40 F.3d 72, 75 (4th Cir.
1994); see also Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011) (agreeing
with “sister circuits that a prison grievance procedure does not provide an inmate with a
constitutionally protected interest”); Boyd v. Werholtz, 443 F. App’x 331 (10th Cir. 2011)
(affirming dismissal under § 1915A of inmate’s claim based on alleged denial of access
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to prison grievance procedure); Sawyer v. Green, 316 F. App’x 715, 717 n.3 (10th Cir.
2008) (noting that lack of response to jail inmate’s grievance does not constitute a
constitutional violation). Even assuming Mr. Myers was attempting to exhaust
administrative remedies in anticipation of filing a federal lawsuit and that prison officials
prevented him from exhausting administrative remedies, he fails to demonstrate those
prison officials violated his constitutional rights. Instead, the consequence of such
action is that the exhaustion requirement would be excused. See Little v. Jones, 607
F.3d 1245, 1250 (10th Cir. 2010) (“Where prison officials prevent, thwart, or hinder a
prisoner’s efforts to avail himself of an administrative remedy, they render that remedy
‘unavailable’ and a court will excuse the prisoner’s failure to exhaust.”). As a result, Mr.
Myers cannot state an arguable constitutional claim with respect to the alleged losses,
theft, and denials of his administrative grievances and appeals.
Because the facts Mr. Myers alleges do not state an arguable claim, the
amended Prisoner Complaint will be dismissed as legally frivolous. Furthermore, 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 Plaintiff
files a notice of appeal he also must pay the full $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. Accordingly, it is
ORDERED that the complaint (ECF No. 1), the Prisoner Complaint (ECF No. 8),
the amended Prisoner Complaint (ECF No. 11), and the action are dismissed as legally
frivolous pursuant to 28 U.S.C. § 1915A(b)(1). It is
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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

18th day of

March

, 2014.

BY THE COURT:

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

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