Compton v. Lind et al

Filing 9

ORDER of Dismissal. The Complaint and the action are dismissed. Leave to proceed in forma pauperis on appeal is denied. By Judge Lewis T. Babcock on 5/1/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00961-BNB
JASON COMPTON,
Plaintiff,
v.
RANDY LIND, AVCF Warden,
RANDY MALDEN, Case Manager III,
MR. SPARKS, Case Manager Unit One, and
RICK RAEMISCH, CDOC Director,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Jason Compton, initiated this action by filing pro se a Prisoner
Complaint, ECF No. 1, pursuant to 42 U.S.C. § 1983 claiming that his rights under the
United States Constitution have been violated. Plaintiff is incarcerated at the Buena
Vista Correctional Complex-Main and Boot Camp in Buena Vista, Colorado.
The Court must construe the Prisoner Complaint liberally because Plaintiff 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 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 act as
an advocate for a pro se litigant. See id.

Pursuant to 28 U.S.C. § 1915A, the Court must review a prisoner complaint when
a prisoner is seeking redress from officers or employees of a governmental entity. and
dismiss the Complaint, or any portion of the 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 Complaint as legally frivolous.
Plaintiff asserts that in 2005 Magistrate Judge Boyd N. Boland found Plaintiff’s
rights had been violated because he was placed on restricted privileges (RP) without a
disciplinary report (CPOD). Compl. at 4. Plaintiff further contends that Magistrate
Judge Boland directed defendants to pay Plaintiff $500 each day if they placed him on
RP status without involving a disciplinary report. Id. Plaintiff also asserts that he is filing
this action because the CDOC now has restricted his privileges for the past four months
and denied employment until he serves the “Administrative RP status program illegally
to their satisfaction.” Id. Plaintiff further asserts that he is battling cancer, that was first
diagnosed in 2010, and has severe mental health issues over the RP
status. Id.
First, the Court has reviewed the Court’s Docket and has determined Plaintiff did
not file a case in this Court in 2005. In 2009, Plaintiff filed an action challenging his
placement on RP. See Compton v. Herrera, et al., No. 09-cv-01079-ZLW (D. Colo. July
9, 2009). This case was dismissed because Plaintiff failed to pay an initial partial filing
fee. No order was entered in this case granting Plaintiff relief regarding RP and no
directive was stated that Plaintiff would be given $500 a day for every day he may be
2

placed on RP in the future. The Court also reviewed each of Plaintiff’s other four cases
that he filed in this Court, including Case Nos. 11-cv-01886-LTB, 11-cv-01661-LTB, 11cv-01660-LTB, and 12-cv-00731-LTB. Each of these cases were initiated while Plaintiff
was detained at the Elbert County Jail and either challenge the conditions of his
confinement at the jail or the validity of his confinement.
Plaintiff’s challenge to RP status lacks merit for the following reasons. The
existence of a constitutionally protected liberty interest depends upon the nature of the
interest asserted. See Sandin v. Conner, 515 U.S. 472, 480 (1995). A prisoner is not
entitled to any procedural protections in the absence of a grievous loss. See Morrissey
v. Brewer, 408 U.S. 471, 481 (1972). Generally, a liberty interest protected by due
process may arise under the United States Constitution or state law. See Sandin, 515
U.S. at 483-84. State law may create a liberty interest if it imposes an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 484. 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, whether the conditions are extreme, whether the
conditions increases the duration of confinement, and whether the conditions are
indeterminate. See DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1342 (10th Cir.
2007).
Plaintiff’s placement on restricted privileges did not implicate a liberty interest that
arises under the Constitution 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
3

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.
Plaintiff fails to demonstrate the existence of a constitutionally protected liberty
interest that arises under state law because he fails to allege facts that demonstrate his
placement on restricted privileges for a period of four months imposed atypical and
significant hardship in relation to the ordinary incidents of prison life. Plaintiff describes
the differences between a placement in general population and restricted privileges as
follows:
CDOC once again has taken visits, all programs, all religious
services, canteen, and all my property away from me for at
least 4 months minnimum [sic] and I’m not allowed
employment until I serve this case management
Administrative RP status program illegally to their
satisfaction.
ECF No. 1 at 4.
The Court is not persuaded that being subjected to these alleged deprivations for
four months days, or until Plaintiff completes the RP status program, results in atypical
and significant hardship. See Rezaq v. Nalley, 677 F.3d 1001, 1012 (10th Cir. 2012)
(quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983), overruled on other grounds by
Sandin, 515 U.S. at 479-83, for the proposition “that nondisciplinary administrative
segregation ‘is the sort of confinement that inmates should reasonably anticipate
receiving at some point in their incarceration.’ ”).
For these reasons, the Court finds that Plaintiff was not deprived of a
constitutionally protected liberty interest as a result of his placement on RP. The Court

4

also acknowledges that Plaintiff has been diagnosed with cancer and that he alleges he
has severe mental health issues because of the RP placement. Plaintiff, however, does
not assert that he is being denied any necessary treatment for either his cancer or
mental health issues. The Complaint, therefore, will be dismissed as legally frivolous.
The Court also 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 and the action are dismissed as legally frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 1st day of

May

, 2014.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

5