Chasteen v. Black et al

Filing 12

ORDER Directing Plaintiff to File Second Amended Complaint; Plaintiff to file within 30 days from the date of this order, a Second Amended Complaint that complies with the directives in this order. The Clerk of the Court should mail to Plaintiff at the Mesa County Detention Facility a copy of the court-approved Prisoner Complaint form, by Magistrate Judge Boyd N. Boland on 9/16/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02235-BNB
JOSHUA LAFOY CHASTEEN,
Plaintiff,
v.
JASON BLACK,
MIKE DICKENSON,
CRAIG BYNUM,
KYLE MERRYMAN, and
LISA BRISTOL,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE SECOND AMENDED COMPLAINT

Plaintiff, Joshua L. Chasteen, is detained in the Mesa County Detention Facility
in Grand Junction, Colorado. He has filed, pro se, an (Amended) Prisoner Complaint
pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983, asserting deprivations of his
constitutional rights. (ECF No. 8). Mr. Chasteen has been granted leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915.
The Court must construe the (Amended) Complaint liberally because Mr.
Chasteen is not represented by counsel. 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 a pro se litigant’s advocate. See Hall, 935 F.2d at 1110. For the
reasons discussed below, the Court will order Plaintiff to file a Second Amended
Complaint.

The named Defendants in this action are employees of the Mesa County
Criminal Justice Services Department, Community Corrections, in Grand Junction.
Plaintiff makes the following conclusory allegations in the (Amended) Complaint:
(1) “the corporation” has denied him approximately $600.00, to which he is entitled;
(2) Defendant Black threatened to physically assault him; (3) Defendants Black and
Dickenson “would look under the stalls in the restroom while [he] was using the
restroom” (ECF No. 8, at 5); (4) the “Community Corrections Program” refused to allow
his mother to come and collect his personal property; (5) Defendant Bristol, his case
manager, failed to assign him a program matrix so that he could advance in the
community corrections program and also failed to set up necessary counseling sessions
for the Plaintiff, which resulted in Plaintiff’s regression to jail; (6) “staff” have refused to
provide him with grievance forms, in violation of his Fourteenth Amendment due
process rights; and (7) Defendant Merryman denied him medical care for his shoulder
and threatened to punish him if he exercised his First Amendment free speech rights.
Plaintiff further asserts an unspecified violation of the Americans with Disabilities Act of
1990 (ADA), 42 U.S.C. § 12101, et seq. Mr. Chasteen requests monetary relief.
Mr. Chasteen’s claim for damages for an alleged denial of due process in his
regression from community corrections to jail is barred by the rule of Heck v. Humphrey,
512 U.S. 477 (1994). In Heck, the Supreme Court held that if a judgment for damages
favorable to a prisoner in a 42 U.S.C. § 1983 action necessarily would imply the
invalidity of his criminal conviction or sentence, the § 1983 action does not arise until
the conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by an authorized state tribunal, or called into question by the
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issuance of a federal habeas writ. See Heck, 512 U.S. at 486-87. The rule in Heck also
applies to “proceedings that call into question the fact or duration of parole or
probation.” Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir.1996) (per curiam). A
prisoner’s claim challenging his regression from community corrections to jail is
analogous to a claim challenging the revocation of parole or probation. Mr. Chasteen
does not allege that his removal from community corrections has been invalidated.
Accordingly, any claim for damages based on a wrongful regression is barred by Heck.
Plaintiff’s claims against “the corporation” and the “Community Corrections
Program” are construed as claims against the Mesa County Criminal Justice Services
Department, an entity of Mesa County, Colorado. To hold a local government entity
liable under 42 U.S.C. § 1983, Mr. Chasteen must allege facts to show that an
unconstitutional policy or custom exists and that there is a direct causal link between the
policy or custom and the injury alleged. City of Canton, Ohio v. Harris, 489 U.S. 378,
385 (1989); Myers v. Oklahoma County Bd. of County Comm'rs, 151 F.3d 1313, 131620 (10th Cir. 1998). Counties are not liable under 42 U.S.C. § 1983 solely because
their employees inflict injury on a plaintiff. Monell v. New York City Dep’t of Social
Servs., 436 U.S. 658, 694 (1978); Hinton v. City of Elwood, Kan., 997 F.2d 774, 782
(10th Cir. 1993). Plaintiff cannot state a claim for relief under § 1983 merely by pointing
to isolated incidents. See Monell, 436 U.S. at 694.
To hold the individual Defendants liable under § 1983, Mr. Chasteen must allege
facts to show that each Defendant personally participated in a deprivation of his
constitutional rights. 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
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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); see also Dodds v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir.
2010) (“[D]efendant-supervisors may be liable under § 1983 where an ‘affirmative’ link
exists between the unconstitutional acts by their subordinates and their ‘adoption of any
plan or policy. . .–express or otherwise–showing their authorization or approval of such
‘misconduct.’”) (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)). A supervisor
defendant may not be held liable for the unconstitutional conduct of his subordinates on
a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). This
is because Ҥ 1983 does not recognize a concept of strict supervisor liability; the
defendant’s role must be more than one of abstract authority over individuals who
actually committed a constitutional violation.” Fogarty v. Gallegos, 523 F.3d 1147, 1162
(10th Cir. 2008).
Plaintiff’s allegations are conclusory and fail to show the deprivation of a right
secured by the Constitution. For example, verbal threats, without more, do not violate
the Constitution. See McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir.
2001)(“being subjected to nothing more than threats and verbal taunts” does not violate
the Constitution). See also Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979) (per
curiam) (holding that sheriff's laughing at inmate and threat to hang him were insufficient
to state a constitutional violation); Wingo v. Mullins, No. 09-5174, 400 F. App’x 344, 347
(10th Cir. Oct. 28, 2010) (unpublished) (allegation that probation officer taunted plaintiff
with a bullet and yelled at him did not state a constitutional violation).
In addition, there is no independent constitutional right to state administrative
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grievance procedures. See Boyd v. Werholtz, No. 10-3284, 443 F. App’x 331, 332
(10th Cir. 2011 (unpublished) (citing Adams v. Rice, 40 F.3d 72, 75 (4th Cir.1994)). And
the state's voluntary provision of an administrative grievance process does not create a
liberty interest in that process. See Bingham v. Thomas, 654 F.3d 1171, 1177–78 (11th
Cir.2011) (observing that inmates have no constitutionally-protected liberty interest in
access to prison grievance procedure); Buckley v. Barlow, 997 F.2d 494, 495 (8th
Cir.1993) (per curiam) (“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 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 grievance.” Flick v.
Alba, 932 F.2d 728, 729 (8th Cir.1991) (per curiam).
Finally, the Court finds that the complaint is deficient because it fails to comply
with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. The
twin purposes of a complaint are to give the opposing parties fair notice of the basis for
the claims against them so that they may respond and to allow the court to conclude
that the allegations, if proven, show that the plaintiff is entitled to relief. See Monument
Builders of Greater Kansas City, Inc. v. American Cemetery Ass'n of Kansas, 891 F.2d
1473, 1480 (10th Cir.1989). The requirements of Fed.R.Civ.P. 8 are designed to meet
these purposes. See TV Communications Network, Inc. v. ESPN, Inc., 767 F.Supp.
1062, 1069 (D.Colo.1991), aff'd, 964 F.2d 1022 (10th Cir.1992).
Specifically, Rule 8(a) requires that a complaint “contain (1) a short and plain
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statement of the grounds for the court's jurisdiction, . . . (2) a short and plain statement
of the claim showing that the pleader is entitled to relief, and (3) a demand for the relief
sought . . . .” The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1) which provides
that “[e]ach allegation must be simple, concise, and direct.” Taken together, Rules 8(a)
and (d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading
rules. Prolix, vague, or unintelligible pleadings violate the requirements of Rule 8.
In order for Mr. Chasteen “to state a claim in federal court, a complaint 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, 1164
(10th Cir.2007).
Mr. Chasteen’s conclusory allegations are insufficient to state an arguable claim
for relief under § 1983 or the ADA. Mr. Chasteen must present his claims in a
manageable format that allows the Court and the Defendants to know what claims are
being asserted and to be able to respond to those claims. Mr. Chasteen must allege,
simply and concisely, his specific claims for relief, including the specific rights that
allegedly have been violated and the specific acts of each Defendant that allegedly
violated his rights. Accordingly, it is
ORDERED that Plaintiff, Joshua Lafoy Chasteen, file within thirty (30) days
from the date of this order, a Second Amended Complaint that complies with the
directives in this order. It is
FURTHER ORDERED that the Clerk of the Court should mail to Plaintiff at the
Mesa County Detention Facility a copy of the court-approved Prisoner Complaint form.
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It is
FURTHER ORDERED that, if Mr. Chasteen fails to file a (Second) Amended
Complaint that complies with this order within the time allowed, some or all of this action
may be dismissed without further notice.
DATED September 16, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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