Ralston v. Wilson et al

Filing 9

ORDER to Dismiss in Part and to Draw Case by Judge Lewis T. Babcock on 2/24/14. 8 Amended Complaint is stricken, and Gale and Gary Wilson are dismissed. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00247-BNB
CRAIG C. RALSTON,
Plaintiff,
v.
SHERIFF GARY WILSON,
DIVISION CHIEF GALE, and
CHAPLAIN HOSEA CANNON
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE

Plaintiff, Craig C. Ralston, is an inmate at the Denver County Jail. He initiated
this action on January 28, 2014, by filing a Prisoner Complaint (ECF No. 1) asserting a
deprivation of his constitutional rights pursuant to 28 U.S.C. § 1343 and 42 U.S.C. §
1983. He filed an Amended Prisoner Complaint on February 12, 2014 (ECF No. 8).
The Amended Prisoner Complaint asserts new allegations against Defendants Wilson
and Gale, and otherwise incorporates by reference the allegations of the original
Prisoner Complaint.
Mr. Ralston has been granted leave to proceed in forma pauperis pursuant to 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).
The Court must construe the Amended Prisoner Complaint liberally because Mr.
Ralston 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. The
Court has reviewed the Amended Prisoner Complaint and has determined that it is
deficient. For the reasons discussed below, the Amended Prisoner Complaint will be
dismissed, in part, and the remainder drawn to a presiding judge, and, if appropriate, to
a magistrate judge.
Mr. Ralston asserts in the original Prisoner Complaint that he is a Messianic Jew
and has been denied a strictly Kosher diet by Defendant Cannon in violation of his First
Amendment and Fourteenth Amendment rights. (ECF No. 1 at 2-3). In the Amended
Prisoner Complaint, Mr. Ralston contends that Defendants Gale and Wilson ignored his
kites and grievances in violation of the “Formal Grievance procedure and protocol” set
forth in the “Inmate Handbook.” (ECF No. 8 at 4-5). He seeks injunctive relief and
monetary damages.
Mr. Ralston is suing Defendants Gale and Wilson for refusing to review the
appeal from the denial of his grievance. It is well-established that “the 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.” Stewart v. Beach,
701 F.3d 1322, 1328 (10th Cir.2012) (quotation omitted); see also Gallagher v. Shelton,
587 F.3d 1063, 1069 (10th Cir.2009); Whitington v. Ortiz, 307 Fed. Appx. 179, 193 (10th
Cir. 2009). Moreover, “[m]erely sending grievances to a warden is not enough to attach
2

liability." See Phillips v. Tiona, 508 Fed. Appx. 737, 744 (10th Cir. 2013).
In his Amended Prisoner Complaint, Mr. Ralston asserts that it is not the denial
of the grievance that violates his constitutional rights but, instead, the fact that
Defendants Wilson and Gale “did not follow proper [prison grievance] procedure which
does create the necessary causal link to the violation of plaintiff’s rights.” (ECF No. 8 at
4). These allegations do not support a claim against Defendants Gale and Wilson
because they fail to assert the requisite “personal involvement in the alleged
constitutional violation.” See Blaurock v. Kansas Dept.of Corrections, 526 Fed. Appx.
809, 813-14 (10th Cir. 2013) (holding that Plaintiff’s claim based on errors in grievance
procedures was not improperly dismissed); Brodsky v. City and County of Denver, No.
10-cv-01625-MSK-MEH, 2011 WL 4972087, at *13 (D. Colo. Oct. 19, 2011) (dismissing
claim concerning failure of defendants to respond to grievances).
Moreover, inmates like Mr. Ralston, do not have an independent constitutional
right to administrative grievance procedures. See Boyd v. Werholtz, No. 10-3284, 2011
WL 4537783, at *1 (10th Cir. Oct. 3, 2011). “Nor does the state’s voluntary provision of
an administrative grievance process create a liberty interest in that process.” Id. (citing
Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011) (observing that inmates
have no constitutionally-protected liberty interest in access to prison grievance
procedure)); see also Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (per curiam)
(finding that “[a] prison grievance procedure is a procedural right only, it does not confer
any substantive right upon the inmates. Hence, it does not give rise to a protected
liberty interest . . . .” (quotation and brackets omitted)). Instead, “[w]hen the claim
underlying the administrative grievance involves a constitutional right, the prisoner’s
3

right to petition the government for redress is the right of access to the courts, which is
not compromised by the prison’s refusal to entertain his grievances.” Walters v. Corr.
Corp. of Am., 119 Fed. Appx. 190, 191 (10th Cir. 2004) (quoting Flick v. Alba, 932 F.2d
728, 729 (8th Cir. 1991).
Mr. Ralston does not allege a violation of the constitutional right of access to the
courts. He does not allege that he was denied the ability to file grievances, initiate
litigation, or otherwise engage in activities involving his First Amendment petition rights.
His only complaint is that Defendants Gale and Wilson did not respond to his
grievances in accordance with prison grievance procedures, which is insufficient to
demonstrate a constitutional violation. See Walters, 199 Fed. Appx. at 191; Blaurock,
526 Fed. Appx. at 813-14; Brodsky, 2011 WL 4972087, at *13. Therefore, the claim
against Defendants Gale and Wilson is dismissed.
After review pursuant to D.C.COLO.LCivR 8.1(a), the Court has determined that
Mr. Ralston’s claim against Defendant Cannon in the original Prisoner Complaint does
not appear to be appropriate for summary dismissal and that the case should be drawn
to a presiding judge, and, if appropriate, to a magistrate judge. See D.C.COLO.LCivR
8.1(c). Accordingly, it is
ORDERED that Plaintiff’s claim against Defendants Gale and Wilson is
DISMISSED and the Amended Prisoner Complaint is STRICKEN. It is

4

FURTHER ORDERED that Sheriff Gary Wilson and Division Chief Gale are
dismissed as parties to this action. It is
FURTHER ORDERED that the case shall be drawn to a presiding judge and, if
appropriate, to a magistrate judge, pursuant to D.C.COLO.LCivR 40.1(a).
DATED at Denver, Colorado, this

24th day of

February

, 2014.

BY THE COURT:

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

5