Chasteen v. Black et al

Filing 15

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/27/14. (dkals, )

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 OF DISMISSAL

Plaintiff, Joshua L. Chasteen, was detained in the Mesa County Detention
Facility in Grand Junction, Colorado, at the time he initiated this action.1 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.
On September 16, 2014, Magistrate Judge Boyd N. Boland reviewed the
Amended Complaint and determined that it was deficient for several enumerated
reasons. Magistrate Judge Boland directed Mr. Chasteen to file a Second Amended
Complaint within thirty (30) days of the September 16 Order. Plaintiff was advised that
failure to comply would result in the dismissal of some or all of this action without further

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On October 22, 2014, the Mesa County Sheriff’s Office advised the Court in a Letter (ECF No.
14) that Mr. Chasteen was released for time served on October 19, 2014.

notice. Mr. Chasteen did not file a Second Amended Complaint by the court-ordered
deadline. Accordingly, the Court reviews the sufficiency of the Amended Complaint
(ECF No. 8) to determine if summary dismissal is warranted. See D.C.COLO.LCivR
8.1(b) and (c).
Mr. Chasteen 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.
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 Amended Complaint and this action will be dismissed.
The named Defendants in this action are employees of the Mesa County
Criminal Justice Services Department (CJSD), Community Corrections, in Grand
Junction. Plaintiff makes the following allegations in the Amended Complaint: (1) “the
corporation” has denied him approximately $600.00, to which he is entitled (ECF No. 8,
at 4); (2) Defendant Black threatened to physically assault him (id.); (3) Defendants
Black and Dickenson “would look under the stalls in the restroom while [he] was using
the restroom” (id.); (4) the “Community Corrections Program” refused to allow his
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mother to come and collect his personal property (id.); (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 (id. at 5); (6) “staff” have
refused to provide him with grievance forms, in violation of his Fourteenth Amendment
due process rights (id. at 6); (7) Defendant Merryman denied him medical care for his
shoulder and threatened to punish him if he exercised his First Amendment free speech
rights (id. at 8). Plaintiff further asserts an unspecified violation of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101, et seq. (Id. at 9). Mr. Chasteen
requests monetary relief.
I. Applicability of Heck
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
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
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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.
II. § 1983 Claims Against Defendants in their Official Capacities
The Court liberally construes Plaintiff’s allegations against “the corporation” and
the “Community Corrections Program” as referring to the Mesa County CJSD, an entity
of Mesa County, Colorado.2 Although Plaintiff has not named Mesa County as a
Defendant, any official capacity claims that he asserts against the individual
Defendants, who are employees of Mesa County, are construed as claims against Mesa
County. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (stating that claims asserted against
government officials in their official capacities are construed against the governmental
entity).
Mr. Chasteen was warned by Magistrate Judge Boland in the September 16
Order that to hold a county liable under 42 U.S.C. § 1983, he 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, 1316-20 (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

2

See http://cjsd.mesacounty.us. This Court may take judicial notice of the contents of a
government agency’s website. See e.g., Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir.2005) (taking
judicial notice of Texas agency's website).

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pointing to isolated incidents. See Monell, 436 U.S. at 694.
Mr. Chasteen does not allege specific facts to show a causal connection
between a custom or policy of Mesa County and the alleged constitutional deprivations.
Furthermore, his allegations that Mesa County has denied him approximately
$600.00, to which he is entitled (ECF No. 8, at 4), and that the County refused to allow
his mother to come and collect his personal property, fail to state an arguable
constitutional deprivation. A pro se litigant’s vague and conclusory allegations that his
federal constitutional rights have been violated does not entitle him or her to a day in
court, regardless of how liberally the court construes such pleadings. See Ketchum v.
Cruz, 775 F.Supp. 1399, 1403 (D.Colo.1991), aff'd, 961 F.2d 916 (10th Cir.1992). “[I]n
analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only
the plaintiff's well-pleaded factual contentions, not his conclusory allegations.” Hall, 935
F.2d at 1110.
Mr. Chasteen’s claim that $600 was withheld from him is conclusory and does
not include any specific facts to show that he had a constitutionally-protected property
interest in the money. Further, his deprivation of property claim fails because Plaintiff
has not alleged that the prison's grievance procedure or state court claims are
inadequate post-deprivation remedies. See Hudson v. Palmer, 468 U.S. 517, 536
(1984).
Accordingly, Plaintiff’s § 1983 claims against the Defendants, in their official
capacities, will be dismissed.
III. § 1983 Claims Against Defendants in their Personal Capacities
Plaintiff’s personal capacity claims against the individual Defendants are deficient
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because Mr. Chasteen does not allege specific facts to show that each named
Defendant participated in a deprivation of his constitutional rights. Magistrate Judge
Boland warned Plaintiff in the September 16 Order that to hold the Defendants
individually liable under § 1983, he 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 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).
Mr. Chasteen does not allege any facts to show that Defendant Bynum, who is
alleged to be the CJSD Manager, was personally involved in the alleged constitutional
violations. Accordingly, Defendant Bynum is an improper party to this action and will be
dismissed.
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Plaintiff’s allegations that Defendant Black threatened to physically assault him,
and that Defendants Black and Dickenson “would look under the stalls in the restroom
while [he] was using the restroom” (ECF No. 8, at 5), do not state an arguable claim for
relief under § 1983. 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). And the constitutional right to privacy is not
implicated when male officers view a male inmate while he uses the restroom. Cf.
Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982) (recognizing that prisoners
retain a limited constitutional right to bodily privacy, which is implicated when the
prisoner is viewed using the toilet by a member of the opposite sex). Nor do Plaintiff’s
allegations trigger Eighth Amendment concerns. See Farmer v. Brennan, 511 U.S. 825,
828 (holding that a prison official's deliberate indifference to a substantial risk of serious
harm to inmate health or safety violates the Eighth Amendment.). Accordingly, the
claims against Defendants Black and Dickenson will be dismissed because Plaintiff’s
allegations fail to demonstrate an arguable deprivation of his constitutional rights.
Mr. Chasteen’s allegation that he was denied grievance forms is not actionable
under § 1983 because there is no independent constitutional right to state
administrative grievance procedures. See Boyd v. Werholtz, No. 10-3284, 443 F. App’x
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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).
Further, Mr. Chasteen has not alleged any “actual injury” or hindrance to “his efforts to
pursue a legal claim.” See Lewis v. Casey, 518 U.S. 343, 349-53 (1996).
Finally, Plaintiff’s allegations that Defendant Merryman denied him medical care
for his shoulder and threatened to punish him if he exercised his First Amendment free
speech rights will be dismissed as vague and conclusory. See Ketchum v. Cruz, 775
F.Supp. at 1403; Hall, 935 F.2d at 1110. See also Robledo v. West, No. 14-1067, 568
F. App’x 643, 644-45 (10th Cir. June 25, 2014) (unpublished) (affirming district court’s
dismissal of prisoner’s § 1983 claims as legally frivolous where plaintiff offered only
vague and conclusory allegations).
IV. ADA violation
Mr. Chasteen also makes a conclusory assertion that his ADA rights were
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violated. (ECF No. 8, at 9). Construing his allegations liberally and together, the Court
finds that this claim is based, at least in part, on Defendant Bristol’s alleged conduct in
denying him participation in mental health counseling sessions which were required as
part of his completion of the community corrections program. (Id. at 5). Nonetheless,
Plaintiff does not allege specific facts to show that he was denied the benefits of a
public entity’s services or programs because of a disability. As such, the ADA claim will
be dismissed summarily. See Maynard v. Fallin, No. 13-6239, 564 F. App’x 943, 949
(10th Cir. April 29, 2014) (unpublished) (affirming dismissal of Title II ADA claim under
28 U.S.C. § 1915A where plaintiff failed to set forth facts to state an arguable claim for
relief). Accordingly, it is
ORDERED that the federal claims asserted in the Amended Complaint (ECF No.
8) are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B). To the
extent Mr. Chasteen asserts any state law claims, the Court declines to exercise
jurisdiction over those claims pursuant to 28 U.S.C. § 1367(c)(3). It is
FURTHER ORDERED that this action is dismissed in its entirety. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
DENIED for the purpose of appeal. 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 Mr. Chasteen files a notice of

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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 October 27, 2014, at Denver, Colorado.
BY THE COURT:

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

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