Vidmar, Jr. v. Florez

Filing 10

ORDER dismissing this action, and denying leave to proceed in forma paupers on appeal, by Judge Lewis T. Babcock on 6/30/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01028-GPG
JOHNN A. VIDMAR JR.,
Plaintiff,
v.
LT. FLOREZ, Corrections Corporation of America at Crowley Corrections Facility,
Defendant.

ORDER OF DISMISSAL

Plaintiff Johnn A. Vidmar, Jr., is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Fremont Correctional Facility in Cañon
City, Colorado. Plaintiff initiated this action on May 13, 2015, by filing a Letter and a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915.
Magistrate Judge Gordon P. Gallagher reviewed the documents, determined they were
deficient, and directed Plaintiff to file his claims on a proper Court-approved form and to
submit a proper associated Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915. Plaintiff complied on June 24, 2015, and Magistrate
Judge Gallagher granted him leave to proceed pursuant to § 1915 on June 25, 2015.
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). If a complaint reasonably can be read “to state a
valid claim on which the plaintiff could prevail, [a 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, a court should not act as a pro se litigant’s advocate.

See id.
Because Plaintiff has been granted leave to proceed pursuant to 28 U.S.C.
§ 1915, under § 1915(e)(2)(B)(i) the Court must dismiss the action or any claims if the
claims 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).
Factual frivolousness includes allegations that are “clearly baseless,” “fantastic,” or
“delusional.” Id.
For the reasons stated below, the Complaint and action will be dismissed in part
as legally frivolous. Otherwise, the Complaint will be dismissed without prejudice as
barred pursuant to Heck v. Humphrey, 512 U.S. 477 (1994).
Plaintiff asserts jurisdiction pursuant to 28 U.S.C. § 1983. In Claim One, Plaintiff
alleges that on October 12, 2014, he refused to follow an order to be locked down in his
cell and was written up for disobeying an order. Plaintiff further alleges in Claim Two
that, while he was moved to segregation for disobeying an order, his property was left
unsecured in a unit hallway, and as a result his television and commissary items were
stolen. Plaintiff also alleges that he received an extra twenty days on his sentence for
the disciplinary action, which caused his release date to be moved from December 9,
2014, to December 29, 2014. Plaintiff seeks money damages. He also contends that
“all actions were taken to resolve this issue raised before [he] was released from
Crowley with no results” and “after filing all forms to resolve nothing even was reemburst [sic].” Compl., ECF No. 6, at 4 and 6.
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
Cir. 1994). However, “neither negligent nor intentional deprivations of property under
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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).
Plaintiff titles Claim One as “Unprofessional Conduct and Negligence.” A review
of the supporting facts in Claim One demonstrate that Plaintiff is pleading negligent
behavior on Defendant Florez’s part. His claims, therefore, fall short of a due process
claim and may not be asserted pursuant to 42 U.S.C. § 1983. But even if Plaintiff could
plead the loss of property was the loss of intentional behavior, he fails to claim that he
was denied an adequate post deprivation remedy.
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 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, 2010) (unpublished) (noting that “[a]dequate state remedies are not limited to
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the filing of grievances, but include filing complaints in state court.”) (internal citations
omitted).
Plaintiff does not assert that the Crowley Correctional Facility’s grievance
procedure was unresponsive or inadequate with respect to the loss of his property. He
in fact claims that he filled out all forms and took all actions to resolve the issue, but he
was not reimbursed. Simply because his grievance procedure or appeal was not
decided in his favor does not equate to an unresponsive or inadequate remedy.
Plaintiff’s property claim, therefore, fails to assert a meritorious claim and will be
dismissed as legally frivolous.
To the extent Plaintiff is challenging his placement in segregation, “a liberty
interest exists only when . . . an ‘atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.’ ” Meek v. Jordan, 534 F. App’x 762, 765
(10th Cir. 2013) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). 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 (1) the conditions relate to and further a legitimate penological interest;
(2) the conditions are extreme; (3) the conditions increase the duration of confinement;
and (4) the conditions are indeterminate. See DiMarco v. Wyo. Dep't of Corr., 473 F.3d
1334, 1342 (10th Cir. 2007).
Nothing Plaintiff asserts demonstrates that his twenty-day placement in punitive
segregation was extreme; nor is the twenty-days indeterminate. The Tenth Circuit has
found that placement in punitive segregation or on restricted privileges for a time period
longer than Plaintiff ‘s sanction did not constitute an atypical and significant hardship.
See, e.g., Grady v. Garcia, No. 12-1151, 506 F. App’x 812, 814 (10th Cir. 2013)
(inmates placement on restricted privileged status for 105 days did not constitute an
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atypical and significant hardship when compared to the ordinary incidents of prison life);
Meek, 534 F. App’x at 765 (finding that sixty days in punitive segregation as a
disciplinary sanction did not implicate a protected liberty interest). The twenty-day,
punitive segregation sanction entered against Plaintiff did not violate his liberty interest.
This claim, therefore, will be dismissed as legally frivolous.
Plaintiff also may not recover damages for the twenty-day extension of his
sentence because the claim challenges the validity and execution of his disciplinary
conviction. See Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the United States
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 claims seeking to invalidate the results of
administrative proceedings and to parole proceedings. See Edwards v. Balisok, 520
U.S. 641 (1997) (applying Heck to prison inmate’s claims challenging procedures used
to deprive him of good time credits); Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir.
1996) (per curiam) (stating that Heck applies to proceedings related to parole and
probation).
Plaintiff does not allege, and nothing in the Court’s file indicates, that he has
invalidated his disciplinary conviction. In fact, it is apparent Plaintiff has not invalidated
his disciplinary conviction because he states that he challenged the issues, which he
raises in this action, prior to being released from Crowley, but he received “no results.”
ECF No. 6 at 6. Therefore, the claims for damages are barred by Heck and will be
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dismissed. The dismissal will be without prejudice. See Fottler v. United States, 73
F.3d 1064, 1065 (10th Cir. 1996).
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not 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 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.
Accordingly, it is
ORDERED that the Complaint and action are dismissed in part as legally
frivolous (with respect to the property and segregation claims) pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). It is
FURTHER ORDERED that the Complaint and action are dismissed without
prejudice in part (with respect to the extension of sentence claim) as barred pursuant to
Heck v. Humphrey, 512 U.S. 477 (1994). See Fottler v. United States, 73 F.3d 1064,
1065 (10th Cir. 1996). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 30th day of

June , 2015

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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