Chavez v. Colorado Attorney General et al

Filing 13

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/22/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01646-GPG
GERALD C. CHAVEZ,
Plaintiff,
v.
DAYNA MORGAN,
LARRY TURNER, and
TOM CLEMENTS,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Gerald C. Chavez, is a Colorado Department of Corrections (CDOC)
prisoner who is incarcerated currently at the Cimarron Correctional Facility in Cushing,
Oklahoma. Mr. Chavez initiated this action by filing a Prisoner Complaint pursuant to 42
U.S.C. ' 1983, asserting that the Defendants violated his constitutional rights.
In an August 27, 2015 Order (ECF No. 7), Magistrate Judge Gordon P. Gallagher
reviewed the Complaint and determined that it was deficient because Mr. Chavez does
not have a constitutional right to be confined in a particular facility, and Plaintiff failed to
allege specific facts to show that the Defendants are personally responsible for his
placement and continued confinement in administrative segregation at the Oklahoma
facility. Consequently, Magistrate Judge Gallagher directed Mr. Chavez to file an
Amended Complaint, within 30 days, to cure the deficiencies. (Id.). Mr. Chavez filed an
Amended Complaint on October 20, 2015. (ECF No. 12).
Plaintiff has been granted leave to proceed in forma pauperis pursuant to 28

U.S.C. ' 1915. Subsection (e)(2)(B)(i) requires a court to dismiss sua sponte an action at
any time if the action is 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. Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The Court must construe the Amended Complaint liberally because Mr. Chavez 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). However, the Court should not be
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, this action will be dismissed.
I. The Amended Complaint
Mr. Chavez alleges in the Amended Complaint that on November 9, 2009, he was
transferred from a Colorado state prison to an Oklahoma private prison after he witnessed
a physical altercation between an inmate and a staff member. Mr. Chavez states that
the staff member assaulted the prisoner, but then the prisoner got Athe upper hand@ and
began defending himself. (ECF No. 12 at 3). Plaintiff alleges that he was the sole
witness to the incident. Mr. Chavez further alleges that he has been placed in
administrative segregation for over five years, without being afforded a hearing or regular
administrative reviews. He asserts that the Defendants= actions in unlawfully
transferring him to a prison in Oklahoma; in housing him in administrative segregation
indefinitely; and, in denying his requests to be returned to a Colorado prison, violate his
constitutional rights. He further claims that the warden and other staff members at the
Oklahoma prison are subjecting him to inhumane conditions of confinement. Mr.
Chavez seeks monetary relief, and an order requiring the Defendants to transfer him back
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to a Colorado state prison.
II. Legal Analysis
Mr. Chavez was warned in the August 27, 2015 Order that he does not have a
constitutional right to be confined in a Colorado facility. See Olim v. Wakinekona, 461
U.S. 238, 248 (1983) (A[A]n interstate prison transfer, . . ., does not deprive an inmate of
any liberty interest protected by the Due Process Clause in and of itself.@ See also Montez
v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (AMontez has not identified any federal
law or statute that prohibits the transfer of an inmate from one state to a private facility in
another state@). Indeed, a Colorado statute specifically authorizes the executive director
of the CDOC to transfer a Colorado prisoner to a prison facility in another state. See
COLO.REV.STAT. (AC.R.S.@) '' 17-1-105(1)(f) (stating that the executive director shall
have . . . AThe authority to enter into contracts and agreements with other jurisdictions,
including other states, . . . , for the confinement and maintenance of offenders sentenced
to imprisonment by the courts of this state . . .@). Interstate Corrections Compacts have
been upheld by the Supreme Court as constitutional. See Olim, 461 U.S. at 246-48.
Furthermore, although an inmate has a constitutional right not to be transferred in
retaliation for the exercise of his constitutional rights, see Frazier v. Dubois, 922 F.2d 560,
561-62 (10th Cir. 1990), Mr. Chavez does not allege facts to show that he was transferred
because of his exercise of a constitutional right. Simply witnessing a physical altercation
between an inmate and staff does not implicate the Constitution.
Mr. Chavez=s confinement in administrative segregation for over five years may
trigger a constitutionally protected liberty interest if he is being subjected to an atypical

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and significant hardship in relation to the ordinary incidents of prison life. See Sandin v.
Conner, 515 U.S. 472, 484 (1995). Plaintiff was warned in the August 27 Order that his
Complaint did not contain any specific allegations about the conditions of his confinement
and was afforded an opportunity to amend. However, the Amended Complaint does not
include any additional facts to about whether the conditions of his confinement constitute
an atypical or significant hardship.
In addition, Mr. Chavez fails to allege facts to demonstrate that the named
Defendants, who are agents or officials of the State of Colorado, are responsible for his
continued confinement in administrative segregation in the Oklahoma facility. Mr.
Chavez was warned in the August 27 Order that personal participation is an essential
element in a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.
1976); 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 Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th
Cir.2009) (citations and quotations omitted); Dodds v. Richardson, 614 F.3d 1185,
1200-1201 (10th Cir. 2010). A supervisor can only be held liable for his own deliberate
intentional acts. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). The Court finds that
Mr. Chavez has failed to state an arguable claim for relief against the named Defendants
under ' 1983 based on his confinement in administrative segregation.
Finally, if Mr. Chavez wishes to pursue ' 1983 claims challenging the conditions of
his confinement at the Oklahoma prison, or his continued administrative segregation, he
must file a civil rights complaint in the federal district court in Oklahoma and name the
appropriate prison officials or employees as defendants. Accordingly, it is
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ORDERED that the Amended Complaint (ECF No. 12) and this action are
DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. ' 1915(e)(2)(B). It is
FURTHER ORDERED that leave to proceed in forma pauperis is denied for the
purpose of appeal. 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 Mr. Chavez 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 October 22, 2015, at Denver, Colorado.
BY THE COURT:

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

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