Vreeland v. Raemisch et al

Filing 6

ORDER TO DISMISS IN PART AND TO AMEND IN PART by Judge Lewis T. Babcock on 8/12/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01295-GPG
DELMART E.J.M. VREELAND, II,
Plaintiff,
v.
RICHARD RAEMISCH, Executive Director, Colorado Department of Corrections,
OFFICE OF THE INSPECTOR GENERAL, Colorado Department of Corrections,
INVESTIGATOR RICHARD WREN, Office of the Inspector General,
INVESTIGATOR SANCHEZ, Office of the Inspector General,
WARDEN LOU ARCHULETA, Fremont Correctional Facility, CDOC,
CAPTAIN PATRICK FHUERE, Fremont Correctional Facility, CDOC,
CASE MANAGER T. CHAVEZ, Fremont Correctional Facility, CDOC,
SERGEANT J. HANSEN, Fremont Correctional Facility, CDOC,
GARY CASSIO, CDOC,
PROPERTY OFFICER McCLEAN, Fremont Correctional Facility, CDOC,
OFFICER BUSTAMANTE, Fremont Correctional Facility, CDOC, and
UNION SUPPLY MEDIA/UNION SUPPLY GROUP, Rancho Dominguez, California,
Defendants.

ORDER TO DISMISS IN PART AND
TO AMEND IN PART

On June 18, 2015, Plaintiff Delmart E.J.M. Vreeland, II, filed a Prisoner
Complaint. He also has paid the $400 filing fee. Plaintiff is in the custody of the
Colorado Department of Corrections (DOC) and currently is incarcerated at the
Colorado Territorial Correctional Facility in Cañon City, Colorado. Pursuant to 28
U.S.C. § 1915A and to D.C.COLO.LCivR 8.1(b)(2) and (3), this Court is required to
review the pleadings of a prisoner, whether Plaintiff has paid the filing fee or not, when
he is challenging prison conditions and seeking redress from a governmental entity,
officer or employee, to determine if the pleadings should be summarily dismissed.
Pursuant to this Court’s initial review and the following findings, the Court will dismiss

the Complaint in part as legally frivolous and direct Plaintiff to amend the remaining
claims in compliance with this Order.
First, the Complaint is deficient because Plaintiff has failed to assert personal
participation by every named defendant in the alleged constitutional violation. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal
participation, Plaintiff must show how each named individual caused the deprivation of a
federal right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). There must be an
affirmative link between the alleged constitutional violation and each defendant’s
participation, control or direction, or failure to supervise. See Butler v. City of Norman,
992 F.2d 1053, 1055 (10th Cir. 1993).
Also, a defendant may not be held liable for the unconstitutional conduct of his or
her subordinates on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009). Furthermore,
when a plaintiff sues an official under Bivens or § 1983 for
conduct “arising from his or her superintendent
responsibilities,” the plaintiff must plausibly plead and
eventually prove not only that the official’s subordinates
violated the Constitution, but that the official by virtue of his
own conduct and state of mind did so as well.
Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at
677). Therefore, in order to succeed in a § 1983 suit against a government official for
conduct that arises out of his or her supervisory responsibilities, a plaintiff must allege
and demonstrate that: “(1) the defendant promulgated, created, implemented or
possessed responsibility for the continued operation of a policy that (2) caused the
complained of constitutional harm, and (3) acted with the state of mind required to
establish the alleged constitutional deprivation.” Id. at 1199.

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Plaintiff also cannot maintain claims against prison officials or administrators on
the basis that they denied his grievances. The “denial of a grievance, by itself without
any connection to the violation of constitutional rights alleged by plaintiff, does not
establish personal participation under § 1983.” Gallagher v. Shelton, 587 F.3d 1063,
1069 (10th Cir. 2009); see also Whitington v. Ortiz, No. 07-1425, 307 F. App’x. 179, 193
(10th Cir. Jan. 13, 2009) (unpublished) (stating that “the denial of the grievances alone
is insufficient to establish personal participation in the alleged constitutional violations.”)
(internal quotation marks and citation omitted); Davis v. Ark. Valley Corr. Facility, No.
02-1486, 99 F. App’x. 838, 843 (10th Cir. May 20, 2004) (unpublished) (sending
“correspondence [to high-ranking prison official] outlining [a] complaint . . . without more,
does not sufficiently implicate the [supervisory official] under § 1983”).
Also, the State of Colorado and its entities, such as the Office of the Inspector
General or the Colorado Department of Corrections, are protected by Eleventh
Amendment immunity. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66
(1989); Meade v. Grubbs, 841 F.2d 1512, 1525-26 (10th Cir. 1988). “It is well
established that absent an unmistakable waiver by the state of its Eleventh Amendment
immunity, or an unmistakable abrogation of such immunity by Congress, the
amendment provides absolute immunity from suit in federal courts for states and their
agencies.” Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 588 (10th Cir.
1994), overrruled on other grounds by Ellis v. University of Kansas Med. Ctr., 163 F.3d
1186 (10th Cir. 1998). The State of Colorado has not waived its Eleventh Amendment
immunity, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988), and
congressional enactment of § 1983 did not abrogate Eleventh Amendment immunity,
see Quern v. Jordan, 440 U.S. 332, 340-345 (1979).
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The Eleventh Amendment, however, does not bar a federal court action so long
as the plaintiff seeks in substance only prospective relief and not retrospective relief for
alleged violations of federal law, but Plaintiff must assert a claim for prospective relief
against individual state officers. Verizon Maryland v. Public Service Commission of
Maryland, 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 296 (1997)); Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007). Defendant
Colorado Department of Corrections, therefore, is an improper party to this action.
Furthermore, Plaintiff’s access to the courts claim must state a sufficient actual
injury. See Lewis v. Casey, 519 U.S. 343, 351-52 (1996) (emphasis added). Plaintiff is
familiar with the actual-injury requirement. See Vreeland v. Schwartz, No. 14-1241, 7-8
(10th Cir. May 26, 2015).
Finally, to state a claim in federal court Plaintiff must explain (1) what a defendant
did to him; (2) when the defendant did it; (3) how the defendant’s action harmed him;
and (4) what specific legal right the defendant violated. Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007).
For the reasons stated below, the Court will dismiss Plaintiff’s property and
segregation claims, set forth in Claim Three on Page Eighteen and in C. Nature of the
Case section on Pages Ten through Thirteen, as legally frivolous pursuant to 28 U.S.C.
§ 1915A(b)(1). 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. Plaintiff’s property and segregation claims are clearly baseless.
The United States Constitution guarantees due process when a person is
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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
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 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
the filing of grievances, but include filing complaints in state court.”) (internal citations
omitted).
Plaintiff does not assert that the DOC grievance procedure was unresponsive or
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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 his grievance was denied. Just
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 for nine days,
“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 nine-day placement in segregation
was extreme, indeterminate, or increased the duration of his confinement. 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, 506 F. App’x 812, 814 (10th Cir. 2013) (inmates
placement on restricted privileged status for 105 days did not constitute an 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 nine-day segregation placement
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entered against Plaintiff did not violate his liberty interest. This claim, therefore, will be
dismissed as legally frivolous. Accordingly, it is
ORDERED that the Prisoner Complaint is dismissed in part pursuant to 28
U.S.C. § 1915A(b)(1) for the reasons stated above. It is
FURTHER ORDERED that within thirty days from the date of this Order,
Plaintiff shall file an Amended Prisoner Complaint, with respect to the remaining claims,
that complies with this Order. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov. Plaintiff must use a
Court-approved form to file the Amended Prisoner Complaint.
FURTHER ORDERED that if Plaintiff fails to file an Amended Prisoner Complaint
that complies with this Order, within the time allowed, the Court will proceed to address
the merits of only the remaining properly asserted claims in the Prisoner Complaint that
Plaintiff submitted to the Court on June 18, 2015.
DATED August 12, 2015, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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