Carter v. Elder

Filing 5

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 6/4/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-1128-LTB
JERRY D. CARTER,
Plaintiff,
v.
EL PASO COUNTY SHERIFF DEPT.;
BILL ELDER,
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

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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 employees at the El Paso County Sheriff’s Department are refusing to
give him copies of his kites. For the reasons stated below, the Complaint and the action will be
dismissed pursuant to the screening authority set forth above. The pertinent grounds which will

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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.
Plaintiff fails to cite to any constitutional source as the bases for his claim. There is no
independent constitutional right to state administrative grievance procedures. Boyd v. Werholtz, 443
F. App’x 331, 332 (10th Cir. 2011). “Nor does the state's voluntary provision of an administrative
grievance process create a liberty interest in that process.” Boyd, 443 F. App’x at 332. Therefore,
Mr. Carter cannot state a due process claim based on allegations of an ineffective grievance system.
It may be that Plaintiff is asserting a deprivation of his due process rights. The United States
Constitution guarantees due process only when a person is to be deprived of life, liberty, or property.
See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). Although Mr. Carter alleges that he
is unable to procure copies of his kites, even assuming he had a property interest in receiving these
copies, he fails to allege facts that demonstrate he was deprived of a constitutionally protected
property interest without adequate due process. Neither negligent nor intentional deprivations of

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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 . Hudson v. Palmer, 468 U.S. 517, 533 (1984).
A prison grievance procedure is an adequate postdeprivation remedy if the grievance
procedure provides a meaningful remedy. See Hudson, 468 U.S. at 536 & n.15; Williams v. Morris,
697 F.2d 1349, 1351 (10th Cir. 1982) (per curiam). According to Plaintiff, there is a grievance
procedure at the El Paso County Sheriff’s Department. Mr. Carter does not allege facts that
demonstrate the grievance procedure is unresponsive or inadequate in any way. See Durre v.
Dempsey, 869 F.2d 543, 548 (10th Cir. 1989) (“In order to state a [due process] claim under § 1983
[for intentional deprivation of property], a complaint must allege facts sufficient to show
deprivation, in this case the lack of an adequate state remedy.”).
In addition, even if the grievance procedure is not an adequate postdeprivation remedy, the
Court also must consider whether an adequate postdeprivation remedy exists in state court. 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 the filing of grievances, but include filing complaints
in state court.”). Mr. Carter does not allege any facts that demonstrate he lacks an adequate remedy
in state court. For these reasons, the Court finds that Mr. Carter cannot state an arguable due process
claim based on his inability to procure copies of his kites.
To the extent that Plaintiff is asserting a claim under the First Amendment, he also fails to
state a claim. In this regard, the right of access to the courts is guaranteed by the First Amendment
of the United States Constitution. In Bounds v. Smith, 430 U.S. 817 (1977), the United States
Supreme Court held “that the fundamental constitutional right of access to the courts requires prison
authorities to assist inmates in the preparation and filing of meaningful legal papers by providing
prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Id.

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at 828. However, in Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court effectively repudiated
much of its prior holding in Bounds. In Lewis, the Supreme Court held that Bounds did not
recognize an independent right in prisoners to have an adequate law library; instead, it concerned
the established right of access to the courts. Lewis, 518 U.S. at 351. Thus, the Lewis Court held that,
in order to successfully challenge a denial of this right of access to the courts, it is not enough for
an inmate to establish that the law library provided was inadequate or he was denied access either
to the law library or to legal materials; rather, he must establish that such inadequacies in the library
or in accessing legal materials caused him actual harm. Id.
In Christopher v. Harbury, 536 U.S. 403 (2002), the Supreme Court set forth specific criteria
that a court must consider in determining whether a plaintiff has alleged a viable claim of right to
access to the courts. Specifically, the Supreme Court held that, in order to state a claim for denial
of access to courts, a party must identify all of the following in the complaint: 1) a non-frivolous,
underlying claim: 2) the official acts frustrating the litigation; and 3) a remedy that may be awarded
as recompense but that is not otherwise available in a future suit. Christopher, 536 U.S. at 415. The
Court explained that the first requirement mandated that the plaintiff specifically state in the
complaint the underlying claim in accordance with the requirements of Rule 8(a) of the Federal
Rules of Civil Procedure to the same degree as if the underlying claim was being pursued
independently. Christopher, 536 U.S. at 417. In this regard, the statement must be sufficiently
specific to ensure that the district court can ascertain that the claim is not frivolous and that the “the
‘arguable’ nature of the underlying claim is more than hope.” Id. The second requirement requires
a Plaintiff to clearly allege in the Complaint the official acts that frustrated the underlying litigation.
Third, a Plaintiff must specifically identify a remedy that may be awarded as recompense in a
denial-of-access case that would not be available in any other future litigation. Id. at 414.

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Here, Plaintiff has failed to identify any legal action he was unable to pursue as a result of
Defendant's alleged actions in failing to give him copies of his kites. Nor has he alleged a remedy
that may be awarded as recompense but that is not otherwise available in a future suit. Thus,
Plaintiff has failed to state a claim upon which relief may be granted with respect to his First
Amendment right of access to the courts. See Kind v. Frank, 329 F.3d 979 (8th Cir. 2003) (holding
that a county jail inmate could not demonstrate that he was denied his constitutional right of access
to the courts based upon jail official's alleged interference with his mail and his access to writing
paper absent a showing that the inmate lost a specific claim in a legal proceeding as a result of the
alleged interference).
The discussion above reveals that Plaintiff’s Complaint fails to state a claim over 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 this dismissal counts as a “strike” under 28 U.S.C. § 1915(g).
Plaintiff is cautioned that he may not bring any further civil actions without paying the full filing
fee after he has accumulated three strikes under 28 U.S.C. § 1915(g). 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

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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

4th

day of June, 2015.
BY THE COURT:

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

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