Van Fleet v. Raemisch

Filing 12

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 5/7/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00224-GPG
DERIC VAN FLEET,
Plaintiff,
v.
RICK RAEMISCH,
MS. LITTLE, Gang Coordinator, and
JAMES FAULK,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Deric Van Fleet, was a prisoner in the custody of the Colorado
Department of Corrections (“DOC”) when he initiated this action. On February 24,
2015, Mr. Van Fleet filed pro se a Prisoner Complaint (ECF No. 5) pursuant to 42
U.S.C. § 1983. He seeks damages as relief.
On February 25, 2015, Magistrate Judge Gordon P. Gallagher ordered Mr. Van
Fleet to file an amended complaint that includes a short and plain statement of his
claims showing he is entitled to relief as required pursuant to Rule 8 of the Federal
Rules of Civil Procedure. Magistrate Judge Gallagher also provided specific instructions
to Mr. Van Fleet regarding the facts necessary to assert an arguable claim. On March
30, 2015, Magistrate Judge Gallagher entered a minute order granting Mr. Van Fleet an
extension of time to file an amended complaint. On April 16, 2015, the copy of
Magistrate Judge Gallagher’s March 30 minute order that was mailed to Mr. Van Fleet

at the prison address he provided was returned to the Court undelivered and the
returned envelope indicates Mr. Van Fleet has been released on parole. (See ECF No.
11.) Mr. Van Fleet has not filed an amended complaint within the time allowed.
Therefore, the Court will consider his claims as set forth in the Prisoner Complaint filed
on February 24.
Mr. Van Fleet has been granted leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. Pursuant to § 1915(e)(2)(B)(i) the Court must dismiss the action if
Mr. Van Fleet’s claims are frivolous. 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. Van Fleet
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. Van Fleet asserts three claims for relief, one against each Defendant,
alleging that Defendants were deliberately indifferent to his safety. The Court construes
the claims liberally as Eighth Amendment claims. Mr. Van Fleet specifically alleges in
support of his claims that Ms. Little failed or refused to file charges against an inmate
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who assaulted Mr. Van Fleet and threatened him with a sharpened steel bolt on August
26, 2014; that Warden James Faulk, who may or may not have known about the
incident, did not take any action; and that DOC Executive Director Rick Raemisch
should have stepped in and taken action.
Mr. Van Fleet’s Eighth Amendment claims are legally frivolous because the facts
he alleges in support of his claims do not support an arguable constitutional claim. “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. Van Fleet must allege that Defendants were
deliberately indifferent to a substantial risk of serious harm. See Farmer v. Brennan,
511 U.S. 825, 834 (1994). Deliberate indifference means that “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.” Id. at 847.
In addition, 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. See Ketchum v. Cruz, 775 F. Supp. 1399,
1403 (D. Colo. 1991), aff’d, 961 F.2d 916 (10th Cir. 1992). The general rule that pro se
pleadings must be construed liberally has limits and “the court cannot take on the
responsibility of serving as the litigant’s attorney in constructing arguments and
searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). Thus, “in analyzing the sufficiency of the plaintiff’s complaint, the court
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need accept as true only the plaintiff’s well-pleaded factual contentions, not his
conclusory allegations.” Hall, 935 F.2d at 1110.
Mr. Van Fleet fails to allege specific facts that demonstrate Defendants acted
with deliberate indifference to his safety. That is, he does not allege specific facts that
demonstrate any Defendant was aware of a substantial risk of serious harm or that any
Defendant disregarded a known risk by failing to take reasonable measures to abate the
risk. Mr. Van Fleet’s vague allegations that Defendants failed either to file charges or
take other, unspecified action after he was assaulted and threatened by an inmate do
not demonstrate his Eighth Amendment rights were violated. Therefore, the Prisoner
Complaint will be dismissed as legally frivolous.
The Court also 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

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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

7th

day of

May

, 2015.

BY THE COURT:

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

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