Allen v. DeCsoro et al

Filing 13

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 7/21/14. 12 Motion Pursuant to F.R.C.P. 65 is denied. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01173-BNB
EDWARD ALLEN, aka EDWARD CLUTTS,
Plaintiff,
v.
RICK RA[E]MIS[C]H,
UNKNOWN EXECUTIVE DIRECTOR DESIGNEE,
ANTHONY DeCESARO,
DONALD CONFIELD,
LOVOREN HEERMONN,
WARDEN STERLING CORRECTIONAL FACILITY,
UNKNOWN WARDEN OF STERLING DESIGNEE, and
OFFICER BOEFF,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Edward Allen, aka Edward Clutts, is in the custody of the Colorado
Department of Corrections (DOC) and currently is incarcerated at the Colorado
Territorial Correctional Facility in Cañon City, Colorado. Plaintiff initiated this action by
filing pro se a Prisoner Complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983
asserting constitutional claims arising out of the conditions of his confinement.
On June 9, 2014, Magistrate Judge Boyd N. Boland reviewed the Complaint and
determined that it was deficient because Plaintiff failed to comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure and did not allege the
personal participation of each named Defendant in a deprivation of his constitutional
rights. Magistrate Judge Boland therefore ordered the Plaintiff to file an Amended
Complaint within thirty days of the June 9 Order. Mr. Allen filed an Amended Complaint

on July 11, 2014. (ECF No. 11). Also pending is a “Motion Pursuant to F.R.C.P. 65"
(ECF No. 12), filed on July 11, 2014.
Mr. Allen has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 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 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). The Court, however, should not
act as a pro se litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons
discussed below, the Amended Complaint and this action will be dismissed.
The Amended Complaint asserts four claims for relief: (1) Defendant Raemisch,
the executive director of the DOC, or Defendant Unknown Executive Director Designee,
have forced Mr. Allen to choose between his constitutional right to receive adequate
medical care in prison and his constitutional right of access to the courts by scheduling
him for medical/dental appointments and law library visits at the same time; (2) Plaintiff
was denied his constitutional right of access to the courts when a small claims case he
filed in the Logan County Court was dismissed after he failed to respond timely to the
Colorado Attorney General’s motion to dismiss and request for attorneys fees; (3) the
Defendant Unknown Warden of Sterling Designee violated Plaintiff’s due process rights
by: placing him in segregation for approximately 45 days without complying with the
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DOC administrative regulations; placing him in a living unit with security threat group
(STG) members who assaulted him; and, in failing to restore Plaintiff’s prison job after
he was removed from segregation; and, (4) Plaintiff was deprived of his personal
property, in violation of the Constitution, when Defendants Heermann and/or Boeff
destroyed his coaxial multi-outlet tv cable and stereo earphones, or allowed someone
else to take his property. Mr. Allen seeks damages and injunctive relief.
A. Review of Amended Complaint
1. Claim One
Mr. Allen’s first claim for relief is not actionable under § 1983. The Constitution is
not offended merely because a prisoner is forced to choose between attending a
dental/medical appointment or visiting the law library. Rather, the inmate states a claim
for relief under the Eighth Amendment claim by alleging facts to demonstrate that prison
officials acted with deliberate indifference to his serious medical needs. See Estelle v.
Gamble, 429 U.S. 97, 106 (1976); see also Farmer v. Brennan, 511 U.S. 825, 847
(1994) (“a prison official may be held liable . . . only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take reasonable
measures to abate it.”). Alternatively, the inmate can state a claim for violation of his
constitutional right of access to the courts by alleging facts to show that he suffered an
actual injury to his ability to pursue a non-frivolous legal claim. See Lewis v. Casey, 518
U.S. 343 (1996).
In claim one, Mr. Allen does not allege any facts to show an arguable deprivation
of his Eighth Amendment right to adequate medical/dental care or that he was denied
his constitutional right of access to the courts. Accordingly, claim one will be dismissed
as legally frivolous.
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2. Claim Two
In his second claim, Mr. Allen contends that he was denied his constitutional right
of access to the courts. Plaintiff alleges that a small claims case he filed in the Logan
County Court to recover “lost wages on a COPD violation to which the Plaintiff was
exonerated” (ECF No. 11, at 6) was dismissed on March 19, 2013, after he failed to
respond timely to the Colorado Attorney General’s motion to dismiss and request for
attorneys fees, filed on February 25, 2013, approximately eight days before trial.
Plaintiff alleges that he was unable to prepare a response by the court-ordered deadline
because he was not allowed sufficient access the law library. Specifically, he asserts
that Defendant Raemisch and/or Defendant Unknown Executive Director Designee
transferred him three times to different detention facilities during the response period,
which prevented him from the necessary law library access to complete and mail his
response to the court. Plaintiff also sues Defendants Confield and DeCesaro, grievance
officers, for failing to take appropriate remedial action.
Prisoners have a constitutional right to adequate, effective, and meaningful
access to the courts. Bounds v. Smith, 430 U.S. 817, 821-22 (1977). In order to state a
claim for denial of access to the courts, a prisoner must demonstrate actual injury from
the alleged interference by alleging facts to show how he was impeded in his effort to
pursue a particular nonfrivolous legal claim. See, e.g., Gee v. Pacheco, 627 F.3d 1178,
1191 (10th Cir. 2010) (applying actual-injury requirement recognized in Lewis v. Casey,
518 U.S. 343, 351-55 (1996). However, “the injury requirement is not satisfied by just
any type of frustrated legal claim.” Lewis, 518 U.S. at 554. The guarantee of access to
the courts requires prisons to provide legal tools “inmates need in order to attack their
sentences, directly or collaterally, and in order to challenge the [constitutionality of the]
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conditions of their confinement. Impairment of any other litigating capacity is simply one
of the incidental (and perfectly constitutional) consequences of conviction and
incarceration.” Id. at 555. (Emphasis in the original). The constitutional right of access
to the courts does not extend to a capacity to litigate claims in small claims court such
as Mr. Allen’s lost wages claim.
Plaintiff’s second claim for relief will be dismissed as legally frivolous. Because
Mr. Allen fails to state an arguable constitutional deprivation in claim two, the Court
need not address whether he has alleged adequately the personal participation of the
named Defendants.
3. Claim Three
For his third claim, Mr. Allen asserts that the Defendant Unknown Warden of
Sterling Designee violated his constitutional rights by: placing him in segregation for
approximately 19 days (from April 5, 2012 to April 24, 2012) without complying with the
DOC administrative regulations, causing Plaintiff to forfeit wages from his prison job;
placing him in a living unit with security threat group prisoners who assaulted Plaintiff;
and, by failing to restore Plaintiff’s prison job after he was removed from segregation.
(ECF No. 11, at 7).
With regard to Mr. Allen’s placement in segregation for 19 days, the threshold
inquiry for a due process claim is whether Plaintiff has alleged facts that would plausibly
implicate a protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974).
A liberty interest exists only when the conditions of segregation impose an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995) (atypical and significant hardship).
Mr. Allen does not allege any facts to show that the conditions of his segregation
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were atypical. The fact that he was not allowed to work at his prison job and earn
wages during his confinement in segregation was not atypical or significant. See
Anderson v. Cunningham, No. 08-1349, 310 F. App’x 706, 711 (10th Cir. March 30,
2009) (unpublished) (stating that the “loss of a bonus payment cannot support [the
plaintiffs] due process violation claim. Restricting payments for prison employment is not
an atypical, significant deprivation); see also Ziegler v. Whitney, No. 04-6166, 112 F.
Appx. 699, 701 (10th Cir. 2004) (unpublished) (citing Washlefske v. Winston, 234 F.3d
179, 184 (4th Cir.2000)). As such, Plaintiff’s 19-day segregation does not implicate the
Due Process Clause. See Sandin, 515 U.S. at 475-76 (holding that 30 days in
disciplinary segregation did not implicate a liberty interest); Gee, 627 F.3d at 1193-94
(holding that four weeks in an isolation cell without additional facts to show an atypical
and significant hardship did not implicate a liberty interest); Meek v. Jordan, No. 131249, 534 F. App’x 762, 765 (10th Cir. Aug. 20, 2013) (unpublished) (rejecting prisoner’s
claim that punitive segregation for 60 days implicated a liberty interest, absent additional
facts to show atypical conditions).
Mr. Allen also asserts that the Defendant Unknown Warden of Sterling Designee
was responsible for his placement in the living unit where he was assaulted by some
STG members. However, Plaintiff’s allegations are too vague to state an arguable
Eighth Amendment violation. Ketchum v. Cruz, 775 F.Supp. 1399, 1403 (D.Colo.1991)
(vague and conclusory allegations that his federal constitutional rights have been
violated “do[ ] not entitle a pro se pleader to a day in court, regardless of how liberally
[the court] construes such pleadings.”), aff'd, 961 F.2d 916 (10th Cir.1992). Plaintiff
does not describe the assault or allege that he suffered any injuries, and he does not
state specific facts to show that the Sterling warden or warden designee was aware of
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a “substantial risk of serious harm” to Plaintiff at the time of his placement in the living
unit, or that the Defendant acted with deliberate indifference to Plaintiff’s safety. See
Farmer, 511 U.S. at 847.
In the June 9 order directing him to file an amended complaint, Magistrate Judge
Boland specifically advised Mr. Allen that, for each claim he asserts, he “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 violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir.2007). Magistrate Judge Boland further warned Plaintiff that he must allege
specific facts to show the personal participation by each named defendant in the alleged
constitutional violation. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.
1976); Kentucky v. Graham, 473 U.S. 159, 166 (1985). There must be an affirmative
link between the alleged constitutional violation and each defendant’s participation,
control or direction, or failure to supervise. See Butler v. City of Norman, 992 F.2d
1053, 1055 (10th Cir. 1993). A defendant may not be held liable for the unconstitutional
conduct of his or her subordinates on a theory of respondeat superior. See Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009); Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir.
2010). Mr. Allen fails to allege facts to state an arguable Eighth Amendment claim
against the Defendant Unknown Warden of Sterling Designee arising from the assault.
Finally, because Mr. Allen does not have a constitutional right to prison
employment, the loss of his prison job, and the Defendant Unknown Warden of Sterling
Designee’s failure to restore Plaintiff’s job after he was removed from segregation, is not
actionable under §1983. See Penrod v. Zavaras, 94 F.3d 1399, 1407 (10th Cir.1996)
(prisoner does not have a protected liberty interest in his prison job.).
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Accordingly, the third claim for relief will be dismissed as legally frivolous.
4. Claim Four
Mr. Allen next claims that he was deprived of his personal property, in violation of
the Constitution, when Defendants Heermann and/or Boeff destroyed his coaxial multioutlet tv cable and stereo earphones, or allowed someone else to take the items. He
further alleges that Defendant DeCesaro denied his grievance for his administrative
claim.
Plaintiff’s allegations regarding loss or confiscation of his personal property are
insufficient to state an arguable due process violation. Insofar as prison officials merely
acted with simple negligence, that would not be enough to raise due process concerns.
See Daniels v. Williams, 474 U.S. 327, 330–31 (1986) (overruling prior precedent “to
the extent that it states that mere lack of due care by a state official may ‘deprive’ an
individual of life, liberty, or property under the Fourteenth Amendment”). Even if Mr.
Allen’s property-related claims did raise due process concerns, unauthorized
deprivations of a prisoner's property do not violate due process where adequate state
post-deprivation remedies are available. See Hudson v. Palmer, 468 U.S. 517, 533
(1984); Becker v. Kroll, 494 F.3d 904, 921 (10th Cir. 2007) (“[W]here pre-deprivation
remedies cannot anticipate and prevent a state actor's wrongful act, post-deprivation
state tort remedies are adequate to satisfy due process requirements.”). Mr. Allen
utilized the administrative remedy provided by the DOC. The fact that he did not prevail
does not render the grievance procedure inadequate. See Allen v. Reynolds, No. 111266, 475 F. App’x 280, 283 (10th Cir. April 6, 2012) (unpublished). Mr. Allen also had
an adequate state post-deprivation remedy under the Colorado Governmental Immunity
Act, at COLO. REV. STAT. § 24-10-118. See Amin v. Voigtsberger, No. 13-1400, 2014
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WL 1259570, at *4 (10th Cir. Mar. 28, 2014) (unpublished).
Claim four will be dismissed as legally frivolous.
B. Rule 65 Motion
Mr. Allen asks the Court to enjoin the DOC from transferring him to another DOC
facility while this action is pending. The Court construes the motion liberally as a
request for a temporary restraining order or preliminary injunctive relief.
A temporary restraining order or preliminary injunction is an “extraordinary
remedy”, and, therefore, “the right to relief must be clear and unequivocal.” Schrier v.
Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005) (quoting SCFC ILC, Inc. v. Visa
USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991)). To obtain a preliminary injunction,
Mr. Allen must demonstrate, inter alia, that he faces irreparable injury of the preliminary
injunction is denied. See Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir.2001).
“To constitute irreparable harm, an injury must be certain, great, actual ‘and not
theoretical.’” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003);
Fed.R.Civ.P. 65(b).
Mr. Allen does not explain in the motion how he will be harmed irreparably if his
request for preliminary injunctive relief is denied. His speculative concern that transfer
to a different DOC facility may impede his constitutional right of access to the courts is
insufficient to warrant injunctive relief. Accordingly, it is
ORDERED that the “Motion Pursuant to F.R.C.P. 65" (ECF No. 12), filed on July
11, 2014, is DENIED. It is
FURTHER ORDERED that the Amended Complaint and this action are
DISMISSED as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. 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 must also 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.
Dated July 21, 2014, at Denver, Colorado.
BY THE COURT:

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

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