Rea, II v. Raemish et al

Filing 5

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/5/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02090-BNB
MICHAEL D. REA, II,
Plaintiff,
v.
RICK RAEMISCH, Colorado Dept. of Corrections, Corporate/Individual,
RANDY LIND, (individually) d/b/a Warden Lind - AVCF,
MICHELLE RUFFINI, (individually) d/b/a Post-Office/AVCF,
STEVE LUCERO, (individually) d/b/a - “STG”, Gang Coordinator,
SECURITY MAJOR “HOUSTON,” (individually), AVCF, and
ATTORNEY GENERAL JOHN SUTHERS, Individual/Corporate Capacity,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Michael D. Rea, II, is a prisoner in the custody of the Colorado
Department of Corrections at the Colorado State Penitentiary in Cañon City, Colorado.
Mr. Rea has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. §
1983 claiming that his rights under the United States Constitution were violated while he
was housed at the Arkansas Valley Correctional Facility. He seeks damages and
injunctive relief.
Mr. Rea has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 in this action. Pursuant to § 1915(e)(2)(B)(i), the Court must dismiss the
action if the claims Mr. Rea is asserting are frivolous or malicious. 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, 327-28 (1989). For the reasons stated below, the Court will
dismiss the action as legally frivolous.
The Court must construe the Prisoner Complaint liberally because Mr. Rea 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 be an
advocate for a pro se litigant. See id.
Mr. Rea asserts two claims for relief stemming from his classification as a
member of a security threat group. According to Mr. Rea prison officials classified him
as a sovereign terrorist and a member of a security threat group “because the plaintiff
had hired a notary public office to perform a commercial protest in a negotiable
instrument matter (non-sovereign redemption issue) and because (their) process utilizes
the U[niform] C[ommercial] C[ode].” (ECF No. 1 at 5 (capitalization altered).) Mr. Rea
asserts in claim one in the Prisoner Complaint that he was classified as a member of a
security threat group without due process and that the classification subjects him to
cruel and unusual punishment. He specifically alleges that he was deprived of a
constitutionally protected liberty interest and subjected to cruel and unusual punishment
because
(1) parole will be harder to obtain, (2) Home-Security
notification is possible upon release from incarceration[,] (3)
Colo. Bureau of Investigation will be notified by the Board of
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Parole if not addressed by the Court, the injury will become
irreparable and only further damage his civil rights; place of
employment, residence etc, and concerns the “Patriot Act.”
(Id. (capitalization altered).) Mr. Rea also may be claiming he was deprived of a
constitutionally protected liberty interest because he allegedly was defamed and
slandered as a result of the classification. Mr. Rea contends in claim two in the Prisoner
Complaint that Colorado Attorney General violated his Eighth Amendment rights by
failing to respond to an inquiry Mr. Rea sent by registered mail regarding his
classification.
The Court first will address the due process argument Mr. Rea raises in claim
one. The United States Constitution guarantees due process when a person is to be
deprived of life, liberty, or property. See Templeman v. Gunter, 16 F.3d 367, 369 (10th
Cir. 1994). As noted above, Mr. Rea contends that he has been deprived of a
constitutionally protected liberty interest.
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. However, state prisoners are not entitled to any
particular degree of liberty and 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 v. Fano, 427 U.S. 215, 224-25 (1976); Templeman, 16 F.3d at 369. The
Constitution also does not create a protected liberty interest in a prisoner’s release prior
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to the expiration of a valid sentence. See Swarthout v. Cooke, 131 S. Ct. 859, 862
(2011) (per curiam); Greenholtz v. Inmates of the Neb. Penal and Corr. Complex, 442
U.S. 1, 7 (1979). Therefore, the due process claim lacks merit unless Mr. Rea has been
deprived of a constitutionally protected liberty interest that arises under Colorado state
law.
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 increase 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).
Mr. Rea’s vague allegations regarding hypothetical future consequences of his
classification as a member of a security threat group do not demonstrate the existence
of a constitutionally protected liberty interest under Colorado state law. Notably, the fact
that the parole board may consider Mr. Rea’s classification in determining whether he
should be released on parole is not enough to demonstrate the existence of a
constitutionally protected liberty interest because Mr. Rea does not allege that his
classification would make him ineligible for parole or invariably affect the parole board’s
decision. See Sandin, 515 U.S. at 487; Hubler v. Lander, 413 Fed. App’x 81, 83 (10th
Cir. 2011). Mr. Rea’s allegations that he was defamed and slandered as a result of his
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prison classification also do not demonstrate the existence of a constitutionally
protected liberty interest because damage to an individual’s reputation, by itself, is not
sufficient to implicate due process protections. See Paul v. Davis, 424 U.S. 693, 701
(1976); Gwinn v. Awmiller, 354 F.3d 1211, 1216 (10th Cir. 2004). Mr. Rea does not
allege facts that demonstrate any injury other than the alleged reputational damage.
For these reasons, the Court finds that Mr. Rea fails to demonstrate he was
deprived of a constitutionally protected liberty interest in connection with his
classification. As a result, the due process claim is legally frivolous and must be
dismissed.
The Court next will address Mr. Rea’s Eighth Amendment arguments. “The
Eighth Amendment’s prohibition of cruel and unusual punishment imposes a duty on
prison officials to provide humane conditions of confinement, including adequate food,
clothing, shelter, sanitation, medical care, and reasonable safety from bodily harm.”
Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008). In order to assert a cognizable
claim under the Eighth Amendment, Mr. Rea must allege that Defendants were
deliberately indifferent to a substantial risk of serious harm. See Farmer v. Brennan,
511 U.S. 825, 834 (1994). Stated another way, Mr. Rea must demonstrate both that the
injury he suffered was sufficiently serious and that Defendants acted with deliberate
indifference. See Tafoya, 516 F.3d at 916. “[E]xtreme deprivations are required to
make out a conditions-of-confinement claim.” Hudson v. McMillian, 503 U.S. 1, 9
(1992). Thus, the Eighth Amendment is not violated unless the conditions deprive a
prisoner of “‘the minimal civilized measure of life’s necessities.’” Wilson v. Seiter, 501
U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
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Mr. Rea fails to allege facts in support of his Eighth Amendment arguments in
claims one and two that demonstrate any Defendant acted with deliberate indifference
to a substantial risk of serious harm or that he suffered a sufficiently serious injury.
Therefore, the Eighth Amendment arguments lack merit and also must be dismissed.
For these reasons, the entire action 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 Prisoner 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 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

5th

day of

September

BY THE COURT:

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

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, 2014.