Carter v. El Paso County Sheriff Dept. et al

Filing 5

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 6/2/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-1110-LTB
JERRY D. CARTER,
Plaintiff,
v.
EL PASO COUNTY SHERIFF DEPT.;
EARLS,
Defendants.

ORDER TO DISMISS

Plaintiff, Jerry D. Carter, currently is in custody in the Colorado Mental Health Institute
at Pueblo (CMHIP). He was transferred there from the El Paso County Sheriff’s Department
sometime earlier this year. Plaintiff initiated this action by filing pro se a Prisoner Complaint
pursuant to 42 U.S.C. § 1983 and a Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915. Plaintiff has been granted leave to proceed pursuant to § 1915 (ECF No. 4).
A. Mandatory Screening and Standards of Review
In 1996, Congress significantly amended Title 28 of the United States Code, section 1915,
which establishes the criteria for allowing an action to proceed in forma pauperis (IFP), i.e., without
prepayment of costs. Section 1915(e) (as amended) requires the federal courts to review complaints
filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that
is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). See Creamer
v. Kelly, 599 F. App’x 336 (10th Cir. 2015) (“Under §§ 1915(e)(2)(B)(i) and (ii), a court must screen
a complaint filed IFP and dismiss the case at any time if the court determines that the action or
appeal is frivolous or malicious or fails to state a claim on which relief may be granted.”) (internal

quotation and citation mitted).
In addition, 28 U.S.C. § 1915A, entitled “Screening,” requires the court to review complaints
filed by prisoners seeking redress from a governmental entity or an officer or employee of a
governmental entity. 28 U.S.C. § 1915A(a). If the complaint is “frivolous, malicious, or fails to
state a claim upon which relief can be granted,” or “seeks monetary relief from a defendant who is
immune from such relief,” the court must dismiss the complaint. 28 U.S.C. § 1915A(b).
Further, the Civil Rights of Institutionalized Persons Act, 42 U.S.C.A. § 1997e requires the
court “on its own motion or on the motion of a party” to dismiss any action brought by a prisoner
with respect to prison conditions under 42 U.S.C. § 1983 if the action is “frivolous, malicious, fails
to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is
immune from such relief.” See 42 U.S.C. § 1997e(c)(1).
Plaintiff is considered a “prisoner” as that term is defined under the PLRA, see 28 U.S.C.
§§ 1915(h); 1915A(c), and he has been granted leave to proceed IFP in this action (ECF No. 4).
Moreover, Defendants are employees of a governmental entity. In addition, he is complaining about
the conditions of his confinement. Thus, his Complaint must be reviewed under the authority set
forth above.
In reviewing complaints under these statutory provisions, a viable complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 554, 556 (2007) (rejecting the traditional standard set forth in Conley v. Gibson, 355 U.S.
41, 45–46 (1957)). The question to be resolved is: whether, taking the factual allegations of the
complaint, which are not contradicted by the exhibits and matters of which judicial notice may be
had, and taking all reasonable inferences to be drawn from those uncontradicted factual allegations
of the complaint, are the "factual allegations ... enough to raise a right to relief above the speculative

2

level, ... on the assumption that all the allegations in the complaint are true even if doubtful in
fact[.]" Bell Atlantic Corp., 550 U.S. at 555. When reviewing a complaint for failure to state a
claim, the Court may also consider documents attached to the complaint as exhibits. Oxendine v.
Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (internal citation omitted). Moreover, 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). See also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (holding that a court may
dismiss a claim as factually frivolous if the facts alleged are clearly baseless, a category
encompassing allegations that are fanciful, fantastic, and delusional).
The Court must construe the 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. Sua sponte dismissal is proper when it is patently obvious that plaintiff
could not prevail on the facts alleged and it would be futile to allow the plaintiff to amend. Andrews
v. Heaton, 483 F.3d 1070, 1074 (10th Cir. 2007); Curley v. Perry, 246 F.3d 1278, 1281–82 (10th Cir.
2001) (internal quotations omitted).
B. Plaintiff’s Allegations
Plaintiff claims that on or about February 15, 2015, he was incarcerated at the El Paso
County Sheriff’s Department prior to his transfer to the CMHIP. He claims that Defendant Earls
made a “death threat” against him by publicly announcing that Plaintiff was at one time a deputy

3

sheriff. He further claims that two days later an unknown prison guard hit him with an orange slice
two times and threatened his life. He further claims that he was moved to a different housing pod
after the incident.
For the reasons stated below, the Complaint and the action will be dismissed pursuant to
screening authority set forth above. The pertinent grounds which will result in the dismissal are
addressed below. An appropriate order follows.
C. Liability under 42 U.S.C. § 1983
Plaintiff seeks to assert liability against Defendants pursuant to 42 U.S.C. § 1983. To state
a claim under 42 U.S.C. § 1983, a plaintiff must meet two threshold requirements. He must allege:
1) that the alleged misconduct was committed by a person acting under color of state law; and 2) that
as a result, he was deprived of rights, privileges, or immunities secured by the Constitution or laws
of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v. Taylor, 451 U.S. 527, 535
(1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330–331 (1986). In
addressing a claim brought under § 1983, analysis begins by identifying the specific constitutional
right allegedly infringed. Graham v. Connor, 490 U.S. 386, 393–394 (1989) (internal quotations
and citations omitted). The validity of the claim then must be judged by reference to the specific
constitutional standard which governs that right. Id.
1.

Conditions of Confinement
Plaintiff’s claim concerns the conditions of his confinement. Claims concerning prison

conditions filed by pretrial detainees are evaluated under the Due Process Clauses of the Fifth and
Fourteenth Amendments, which prohibit defendants from undertaking acts that amount to
punishment. See Bell v. Wolfish, 441 U.S. 520, 535 (1979). In order to determine whether the
challenged conditions of pre-trial confinement amount to punishment:

4

[a] court must decide whether the disability is imposed for the purpose of punishment
or whether it is but an incident of some other legitimate governmental purpose.
Absent a showing of an expressed intent to punish on the part of the detention
facility officials, that determination generally will turn on whether [it has] an
alternative purpose ... and whether it appears excessive in relation to [that] purpose....
Thus, if a particular condition or restriction of pretrial detention is reasonably related
to a legitimate governmental objective, it does not, without more, amount to
“punishment.” Conversely, if a restriction or condition is not reasonably related to
a legitimate goal—if it is arbitrary or purposeless—a court may permissibly infer that
the purpose of the governmental action is punishment that may not constitutionally
be inflicted upon detainees.
Id. at 538–39 (citations, brackets and internal quotations omitted).
Although the Due Process Clause governs a pretrial detainee's claim of unconstitutional
conditions of confinement, the Eighth Amendment standard provides the benchmark for such claims.
Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998). The Eighth Amendment protects individuals
against the infliction of “cruel and unusual punishments.” This protection, enforced against the
states through the Fourteenth Amendment, guarantees incarcerated persons humane conditions of
confinement. In this regard, prison officials must ensure that inmates receive adequate food,
clothing, shelter and medical care, and must “take reasonable measures to guarantee the safety of
the inmates.”

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation omitted.

Notwithstanding, not every injury raises constitutional concerns. A prison official violates the
Eighth Amendment only when two requirements are met. The inmate must show that: 1) he
suffered a risk of “serious” harm; and 2) prison officials showed “deliberate indifference” to such
risk. Farmer, 511 U.S. at 834.
The first element is satisfied when the alleged “punishment” is “objectively sufficiently
serious.” Id. In determining whether a prisoner has alleged a risk that is objectively serious, a court
must consider not only the seriousness of the potential harm and the likelihood that the harm will
actually occur, but evidence that unwilling exposure to that risk violates contemporary standards of

5

decency. In other words, the prisoner must show that the risk of which he complains is not one that
today's society chooses to tolerate. Helling v. McKinney, 509 U.S. 25, 35 (1993).
[E]xtreme deprivations are required to make out a conditions-of-confinement
claim. Because routine discomfort is part of the penalty that criminal offenders pay
for their offenses against society, only those deprivations denying the minimal
civilized measure of life's necessities are sufficiently grave to form the basis of an
Eighth Amendment violation.
Hudson v. McMillan, 503 U.S. 1, 9 (1992) (internal citations and quotations omitted).
The second criterion, deliberate indifference, requires an inmate to show that the prison
official had a sufficiently culpable state of mind. The Supreme Court clarified this deliberate
indifference standard in Farmer as follows.
We reject petitioner's invitation to adopt an objective test for deliberate
indifference. We hold instead that a prison official cannot be found liable under the
Eighth Amendment for denying an inmate humane conditions of confinement unless
the official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference. This
approach comports best with the text of the Amendment as our cases have interpreted
it. The Eighth Amendment does not outlaw cruel and unusual “conditions”; it
outlaws cruel and unusual “punishments.” An act or omission unaccompanied by
knowledge of a significant risk of harm might well be something society wishes to
discourage, and if harm does result society might well wish to assure
compensation.... But an official's failure to alleviate a significant risk that he should
have perceived but did not, while no cause for commendation, cannot under our
cases be condemned as the infliction of punishment.
Farmer, 511 U.S. at 837–838 (internal citations and quotations omitted).
Plaintiff’s claim merely alleges that a guard threw some orange slices at him and allegedly
made threats to him. Accepting Plaintiff’s allegations as true, he fails to assert a constitutionally
protected right. In order to state an Eighth Amendment violation, the conditions presenting the risk
must be "sure or very likely to cause serious illness and needless suffering," and give rise to
"sufficiently imminent dangers." Helling v. McKinney, 509 U.S. 25, 33, 34–35 (1993). It has
universally been held that harassment, threats, and verbal abuse by prison officials simply does not
6

state a constitutional violation. Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992). Here,
the officers' comments, although inappropriate, do not suggest a show of deadly force, thus failing
to create “terror of instant and unexpected death.” Thus, while the conditions of his confinement
were not ideal, they simply do not amount to punishment as prohibited under the Eighth and
Fourteenth Amendments. Accord French v. Colorado, 357 F. App’x 200 (10th Cir. 2009); Alvarez
v. Gonzales, 155 F. App’x 393, 396 (10th Cir. 2005).
Plaintiff’s Complaint fails to state a claim over the any of the named Defendants. Moreover,
it would be futile to allow him to amend his complaint. Accordingly, it is
ORDERED that the Complaint and this action are DISMISSED with prejudice pursuant to
28 U.S.C. § 1915(e)(2)(B), 28 U.S.C. § 1915A and/or 42 U.S.C. § 1997e(c). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. 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 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.
DATED at Denver, Colorado, this

2nd

day of June, 2015.

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

7