Suarez Jr v. Palomino et al

Filing 7

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 5/23/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01078-BNB
JAMES SUAREZ, JR.,
Plaintiff,
v.
JOHN PALOMINO, in his individual and official capacities as former investigator for
CCCF,
Defendant.

ORDER OF DISMISSAL

Plaintiff, James Suarez, Jr., is a prisoner incarcerated at the Crowley County
Correctional Facility in Olney Springs, Colorado. He initiated this action by filing pro se
a Prisoner Complaint pursuant to 42 U.S.C. § 1983 claiming that his rights under the
United States Constitution have been violated. He has been granted leave to proceed
in forma pauperis. On April 30, 2014, Magistrate Judge Boyd N. Boland entered an
order (ECF No. 5) directing Mr. Suarez to file an amended complaint that complied with
the pleading requirements of Fed. R. Civ. P. 8. Specifically, Judge Boland informed Mr.
Suarez that his allegations failed to demonstrate (1) a constitutionally-protected liberty
interest for his due process claim; and (2) a retaliatory motive for his retaliation claim.
(Id.). Mr. Suarez filed an Amended Prisoner Complaint (ECF No. 6) on May 6, 2014.
The Court must construe the Amended 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 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 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 or malicious;
that fails to state a claim upon which relief may be granted; or that seeks monetary relief
from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). A claim is
legally frivolous when it lacks an arguable basis either in law or in fact. See Neitzke v.
Williams, 490 U.S. 319, 324 (1989); Denton v. Hernandez, 504 U.S. 25, 31 (1992). The
Court may, therefore, dismiss a claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
490 U.S. at 327. For the reasons stated below, the Court will dismiss the Complaint as
legally frivolous and for failure to state a claim upon which relief may be granted.
Here, Plaintiff asserts two claims against Defendant. First, Plaintiff alleges that
Defendant violated his Fourteenth Amendment right to procedural due process because
he was placed in segregation for nine days without any notice of charges, evidence, or
a hearing. (ECF No. 6 at 4). He further asserts that while in segregation he was denied
access to television, radio, and personal items. (Id. at 3-4). Second, Plaintiff alleges
that Defendant retaliated against Plaintiff by ordering Plaintiff’s placement in
segregation because he had exercised his First Amendment right of access to the
2

courts. (Id. at 6).
Plaintiff’s first claim lacks merit for the following reasons. To establish a
procedural due process claim, a person must show that he (1) was deprived of a
constitutionally-protected liberty or property interest; (2) was entitled to certain
procedural protections incident to that deprivation; and (3) did not actually receive the
protections to which he was entitled. See Couture v. Board of Education, 535 F.3d
1243, 1257 (10th Cir. 2008). 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).
“In the penological context, not every deprivation of liberty at the hands of prison
officials has constitutional dimension. This is so because incarcerated persons retain
only a ‘narrow range of protected liberty interests.’ ” Rezaq v. Nalley, 677 F.3d 1001,
1011 (10th Cir. 2012); see also Marion v. Columbia Correctional Institution, 449 F.3d
693, 697 (7th Cir. 2009) (noting that an inmate’s liberty interest in avoiding segregation
is very limited or nonexistent).
The first element, 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). Generally, a liberty interest protected by due process may arise under the
United States Constitution or state law. Id. at 483-84. “[T]he Constitution itself does not
give rise to a liberty interest in avoiding transfer to more adverse conditions of
confinement.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citing Meachum v. Fano,
427 U.S. 215, 225 (1976)). Accordingly, Plaintiff’s transfer to segregation for nine days
does not implicate a liberty interest that arises under the Constitution.
State law also may create a protected liberty interest if a transfer to harsher
3

conditions of confinement imposes an “atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Wilkinson, 545 U.S. at 223. 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 (1) relate to and further a legitimate penological interest;
(2) are extreme; (3) increase the duration of confinement; and (4) are indeterminate.
See Estate of DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1342 (10th Cir. 2007). In
making this assessment, the Court should be mindful that “nondisciplinary
administrative segregation ‘is the sort of confinement that inmates should reasonably
anticipate receiving at some point in their incarceration.’ ” Rezaq, 677 F.3d at 1012
(quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983), overruled on other grounds by
Sandin, 515 U.S. at 479-83).
Accordingly, numerous courts have held that an inmate’s temporary placement in
segregation did not impose an atypical and significant hardship in relation to the
ordinary incidents of prison life. See Sandin, 515 U.S. at 484 (holding that thirty days of
segregated confinement “did not present the type of atypical, significant deprivation in
which a State might conceivably create a liberty interest”); DiMarco, 473 F.3d at 134243 (holding that segregation of transgender inmate for safety reasons did not impose an
atypical and significant hardship); Amin v. Voigtsberger, No. 13-1400, 2014 WL
1259570, at *4 (10th Cir. March 28, 2014) (holding as a matter of law that thirty days of
administrative segregation without advance written notice did not violate the Fourteenth
Amendment); Clayton v. Ward, 232 Fed. Appx. 827, 832 (10th Cir. 2007) (twenty-six
days of segregation did not assert a liberty interest where the stay “was of relatively
4

short duration” and no facts were alleged that the confinement was an atypical and
significant hardship); Penrod v. Zavaras, 94 F.3d 1399, 1407 (10th Cir. 1996)
(administrative segregation did not impose an atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison); Barkus v. Kaiser, No. 00-7044,
2000 WL 1346226, at *2 (10th Cir. Sept. 19, 2000) (inmate’s thirty-three day placement
in behavior modification program that restricted his television and movement privileges
did not impose significant hardship on inmate sufficient to create a liberty interest);
James v. Wiley, No. 97-6056, 1997 WL 606985, at *2 (10th Cir. Oct. 2, 1997) (inmate
failed to show that his placement in administrative segregation for forty days was
atypical of ordinary incidents of prison life and thus failed to establish that protected
liberty interest was involved); Wycoff v. Nichols, 94 F.3d 1187, 1189-90 (8th Cir. 1996)
(finding no liberty interest where prisoner served forty-five days in administrative
segregation before disciplinary decision was reversed); see also Townsend v. Fuchs,
522 F.3d 765, 766, 771 (7th Cir. 2008) (concluding that “inmates have no liberty interest
in avoiding transfer to discretionary segregation–that is, segregation imposed for
administrative, protective, or investigative purposes”); Holly v. Woolfolk, 415 F.3d 678,
679 (7th Cir. 2005) (noting that “being placed in segregation is too trivial an incremental
deprivation of a convicted prisoner’s liberty interest to trigger the duty of due process”);
Palmer v. Richards, 364 F.3d 60, 65-66 (2d Cir. 2004) (noting that cases involving
segregation of less than 30 days may be dismissed without a detailed factual record of
conditions of confinement).
Here, Plaintiff fails to demonstrate that his conditions of confinement were
sufficiently “atypical and significant” to create a liberty interest under the Due Process
5

Clause. Plaintiff describes his conditions in segregation as follows:
“defendant (Palomino) retaliated against me by ordering me
to be housed into the hardest punishment in all of DOC,
which is punitive segregation (no TV, no Radio, no Personal
items)”
(ECF No. 6 at 3).
He does not allege that his nine-day segregation affected the duration of his
sentence or that the confinement in segregation was indeterminate. Moreover, the
Court is not persuaded that being subjected to these alleged deprivations for a short
period results in an atypical and significant hardship in relation to the ordinary incidents
of prison life. See e.g., Tena v. Linza, No. 12-cv-03215-MSK-CBS, 2014 WL 1154183,
at *6 (D. Colo. March 13, 2014) (holding that deprivation of inmate’s radio did not
constitute an “atypical and significant hardship”). Thus, the Court finds that Plaintiff has
not pleaded any facts that would plausibly indicate that nine days in segregation without
television, radio, and personal items is atypical to the ordinary incidents of prison life.
Without an underlying liberty interest, Plaintiff was not entitled to the procedural
protections he alleges he was denied. Thus, the due process claim will be dismissed
based on the absence of a protected liberty interest.
Plaintiff’s retaliation claim also lacks merit. To state a retaliation claim, a plaintiff
"must plead facts indicating that he can plausibly prove three elements at trial: (1) he
engaged in constitutionally protected activity; (2) the defendants' actions caused him to
suffer an injury that would chill a person of ordinary firmness from continuing to engage
in the protected activity; and (3) the defendants' actions were substantially motivated by
the plaintiff's protected activity." Magluta v. U.S. Fed. Bureau of Prisons, No.

6

08-cv-00404, 2009 WL 1504749, at *3 (D. Colo. May 27, 2009) (unpublished)
(addressing claim for retaliation in the First Amendment context) (citing Shero v. City of
Grove, 510 F.3d 1196, 1203 (10th Cir.2007)). “ A plaintiff must allege facts to show that
retaliation was the animus behind the defendants' actions, i.e., a plaintiff must show that
‘but for’ a desire to retaliate, the defendants would not have acted as they did."
Magluta, 2009 WL 1504749, at *3 (citations omitted). "An inmate claiming retaliation
must allege specific facts showing retaliation because of the exercise of [his]
constitutional rights." Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir.1998)
(internal quotation marks and citation omitted).
Even assuming that placement in segregation for nine days constitutes adverse
action sufficient to deter a person of ordinary firmness from engaging in protected
activities, Plaintiff fails to adequately allege that Defendant was substantially motivated
by his protected activity. In the Complaint, Plaintiff states that in August 2012, he asked
the facility’s librarian for a prisoner complaint form to assert claims against state
investigators for falsely accusing him of bringing discs into the facility and using abusive
questioning tactics. (ECF No. 6 at 3, 6). Plaintiff then states that Defendant retaliated
against him by ordering Plaintiff into segregation on September 13, 2012. (Id.). Plaintiff
tries to connect his intent to sue the state investigators and Defendant’s decision to
place him in segregation by alleging that the librarian “must have informed defendant”
about Plaintiff’s request for a prisoner complaint in August 2012. (Id.).
The Court finds that Plaintiff’s allegation that Defendant was aware of Plaintiff’s
desire to bring a cause of action against the state investigators is mere speculation.
Moreover, Plaintiff’s conclusory allegations do not establish a connection between his
7

complaints about the state investigators (the officials with the alleged retaliatory
animus), and Defendant (the official who caused Plaintiff’s injury by placing him in
segregation). See e.g., Burns v. Huss, 10cv-2691-WJM-CBS, 2013 WL 2295422, at *810 (D. Colo. May 24, 2013) (dismissing retaliation claim for failure to allege connection
where prison official with retaliatory animus was not the same individual as the
defendant who caused plaintiff’s injury). Thus, Plaintiff does not allege any facts
demonstrating that his desire to assert a cause of action against the state investigators
was the basis for Defendant’s alleged retaliatory intent or the “but for” cause of Plaintiff’s
placement in segregation. Accordingly, Plaintiff’s claim of retaliation is without merit,
and will be dismissed.
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 $505.00 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

8

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

23rd day of

May

, 2014.

BY THE COURT:

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

9