Baker v. Hillyer et al

Filing 7

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/30/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02444-BNB
LEROY W. BAKER,
Plaintiff,
v.
OFFICER HILLYER, Officer, Sterling Corr. Fac.,
OFFICER ROSE, Officer, Sterling Corr. Fac.,
OFFICER RHOSE, Officer, Sterling Corr. Fac., and
ALL OTHER UNIDENTIFIED EMPLOYEES RESPONSIBLE FOR THE TAKING OF
PROPERTY WITHOUT JUST COMPENSATION,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Leroy W. Baker, is in the custody of the Colorado Department of
Corrections (DOC) at the Sterling Correctional Facility in Sterling, Colorado. He initiated
this action by filing pro se a Prisoner Complaint alleging a deprivation of his
constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff also was granted leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
The Court must construe the Prisoner Complaint liberally because Plaintiff is a
pro se litigant. 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.
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).
Under § 1983, a plaintiff must allege that the defendants have violated his or her rights
under the Constitution and laws of the United States while they acted under color of
state law. Adickes v. S. H. Kress & Co , 398 U.S. 144, 150 (1970). The Court will
dismiss this action as legally frivolous, for the reasons stated below.
Plaintiff asserts that he was strip searched by Defendant Officer Rhose, during
which he was required to bend over and spread his cheeks a number of times, while
female officers watched, and Rhose then took Plaintiff’s nude photos (200) and posters
(17) from Plaintiff’s cell. In the Jurisdiction section of the Complaint form, Plaintiff states
he is asserting jurisdiction pursuant to 28 U.S.C. § 1343, 42 U.S.C. § 1983, and “2000
USC & FROM USC 2000-2014 & ALL OTHER FEDERAL STATUES THAT . . . WILL
HELP THIS CASE . . . .” Compl. at 3. In the Nature of the Case and Cause of Action
sections of the Complaint form, Plaintiff, however, asserts violations of several state
criminal statutes, DOC administrative regulations, and the Colorado Constitution.
Plaintiff seeks money damages only for the taking of his property without just
compensation.
Plaintiff does not state a specific violation of his federal constitutional rights. The
Court, however, may liberally construe Plaintiff’s claims and find Plaintiff is attempting to
assert a violation of his federal constitutional rights because his photos and posters
were destroyed without just compensation and he was strip searched by a male officer
while two female officers watched. Nonetheless, these claims are legally frivolous and
will be dismissed for the following reasons.
The United States Constitution guarantees due process when a person is
deprived of life, liberty, or property. See Templeman v. Gunter, 16 F.3d 367, 369 (10th
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Cir. 1994). However, “neither negligent nor intentional deprivations of property under
color of state law that are random and unauthorized give rise to a § 1983 claim where
the plaintiff has an adequate state remedy . . . .” Gillihan v. Shillinger, 872 F.2d 935,
939 (10th Cir. 1989), overruled on other grounds by Clark v. Wilson, 625 F.3d 686, 691
(10th Cir. 2010); see also Hudson v. Palmer, 468 U.S. 517, 533 (1984) (finding that an
unauthorized intentional deprivation of property does not violate due process if an
adequate postdeprivation remedy for the loss is available).
A prison grievance procedure is an adequate post deprivation remedy if the
grievance procedure provides a meaningful remedy. See Hudson, 468 at 536 & n.15;
Williams v. Morris, 697 F.2d 1349, 1351 (10th Cir. 1982). If an administrative remedy
exists, it has a “presumption of adequate due process” that “may stave off a facial
attack.” Freeman v. Dep't of Corrs., 949 F.2d 360, 362 (10th Cir.1991). In order to
overcome the presumption of adequacy, the complaint must state “specific facts”
showing that the remedy was “unresponsive or inadequate.” Id.; see also Durre v.
Dempsey, 869 F.2d 543, 548 (10th Cir. 1989) (affirming dismissal of plaintiff's due
process deprivation of property claim, stating that “[i]n order to state a claim under
§ 1983, a complaint must allege facts sufficient to show deprivation, in this case the lack
of an adequate state remedy”). Plaintiff does not allege facts to show that the DOC
grievance procedure was unresponsive or inadequate.
The fact that Plaintiff was not granted relief in the grievances he claims he filed
and exhausted does not render the grievance procedure inadequate. See Allen v.
Reynolds, 475 F. App’x 280, 283 (10th Cir. 2012).
Moreover, Plaintiff also has an adequate remedy available in state court under
state law. See, e.g., Cooper v. Belcher, 2010 WL 3359709, at *15 (D. Colo. Aug.25,
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2010) (unpublished) (noting that “[a]dequate state remedies are not limited to the filing
of grievances, but include filing complaints in state court.”) (internal citations omitted).
Accordingly, the Court finds that Plaintiff fails to state an arguable Fourteenth
Amendment due process claim against any of the Defendants. Because Plaintiff has
failed to state an arguable claim for deprivation of his constitutional rights, the property
claim will be dismissed as legally frivolous.
As for the possible strip search claim, Plaintiff fails to assert any conduct that is
abusive or demonstrates any evidence of a subjective intent of Defendants to
sufficiently state a claim. See Jackson v. Cen. N.M. Corr. Facility, 976 F.2d 740 (table)
(10th Cir.1992) (unpublished decision) (“Because Plaintiff does not allege that the strip
search was conducted ‘in an abusive fashion or with unnecessary force,’ he does not
state a claim under the Eighth Amendment.”) (quoting Levoy v. Mills, 788 F.2d
1437,1439 (10th Cir. 1986)). Plaintiff acknowledges that the strip search was part of a
search by prison staff to locate a staff ID. Also, he does not assert he was singled out
to be searched for any other reason, and he does not assert that he was subject to
anything more than a visual inspection of his naked body by members of the opposite
sex. Nothing in Plaintiff's vague assertion about his strip search can be considered
malicious or abusive.
Furthermore, there is no blanket prohibition against officers of the opposite sex
conducting or viewing a strip search. See Graham v. Van Dycke, 318 F. App’x 654,
*656 (10th Cir. 2009) (no clearly established law that a search of a female prisoner by a
male officer violates the Eighth Amendment). In fact, the Tenth Circuit has found that
“there may well be times in which female personnel will of necessity need to strip search
male prisoners.” Jackson v. Central New Mexico Correctional Facility, 976 F.2d 740, *3
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(10th Cir. 1992) (unpublished). Because Plaintiff has failed to articulate any facts that
the strip search was conducted in a malicious or abusive manner the claim will be
dismissed as legally frivolous.
Because all claims over which the Court had original jurisdiction will be dismissed
and are based only on federal question, the Court, in its discretion, will decline review of
any of Plaintiff’s state law claims. See 28 U.S.C. § 1367(c)(3).
Finally, this 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 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 Prisoner Complaint and this 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.
DATED at Denver, Colorado, this 30th

day of

September

, 2014.

BY THE COURT:

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

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