Chavez v. Colorado Attorney General et al

Filing 7

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 8/27/15. (dkals, )

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

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

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.
Plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915.
The Court must construe Mr. Perez’s Complaint liberally because he 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, Plaintiff will be directed to file an Amended Complaint.

I. The Complaint
Mr. Perez alleges in the Complaint that on November 9, 2009, he was
transferred from a Colorado state prison to an Oklahoma private prison after he
witnessed a physical alteration between an inmate and a staff member on October 31,
2009. Mr. Perez states that the staff member assaulted the prisoner, but then the
prisoner got “the upper hand” and repeatedly “boot[ed]” the staff member. (ECF No. 1,
at 3). According to Plaintiff,
the staff at the Arkansas Valley Correctional Facility “realized that
[Plaintiff] had been the sole witness in the matter and staff understood
they were not going to be able to tell the story or write the[ir] statement the
way that they wanted to, with me being the one witness, and they sent me
out of state a week later.
(Id.). Mr. Perez 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, violated his constitutional rights. He
seeks monetary relief, and an order requiring the Defendants to transfer him back to a
Colorado state prison.
II. Legal Analysis
Mr. Perez does not have a constitutional right to be confined in a Colorado
facility. See Olim v. Wakinekona, 461 U.S. 238, 248 (1983) (“[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

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Cir. 2000) (“Montez 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. (“C.R.S.”)
§§ 17-1-105(1)(f) (stating that the executive director shall have . . . “The 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. Perez 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. Perez’s confinement in administrative segregation in a private Oklahoma
prison for over five years may implicate a constitutionally protected liberty interest if he
is being subjected to an atypical and significant hardship in relation to the ordinary
incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 484 (1995). Relevant
factors might include whether (1) the segregation relates to and furthers a legitimate
penological interest, such as safety or rehabilitation; (2) the conditions of placement are
extreme; (3) the placement increases the duration of confinement; and (4) the
placement is indeterminate. See Estate of DiMarco v. Wyoming Dep’t of Corrections,
473 F.3d 1334, 1342 (2007). The determination of whether a liberty interest exists “is a
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fact-driven assessment that accounts for the totality of conditions presented by a given
inmate’s sentence and confinement.” Rezaq v. Nalley, 677 F.3d 1001, 1012 (10th Cir.
2012). Mr. Perez does not allege specific facts in the Complaint to show that his
conditions of confinement in administrative segregation are atypical or impose a
significant hardship on him in relation to the ordinary incidents of prison life.
Finally, the Complaint is deficient because Plaintiff does not allege specific facts
to show that the Defendants, who are officials and agents of the State of Colorado, are
personally responsible for Applicant’s placement and continued confinement in
administrative segregation at the Cimarron Correctional Facility in Oklahoma. 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 q uotations omitted); Dodds
v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir. 2010). A superv isor can only be
held liable for his own deliberate intentional acts. See Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009); Serna v. Colo. Dep’t of Corrections, 455 F.3d 1146, 1151 (10th Cir. 2006)
(“Supervisors are only liable under § 1983 for their own culpable involvement in the
violation of a person's constitutional rights.”); see also Fogarty v. Gallegos, 523 F.3d
1147, 1162 (10th Cir. 2008) (“[Section] 1983 does not recog nize a concept of strict
supervisor liability; the defendant’s role must be more than one of abstract authority
over individuals who actually committed a constitutional violation.”). Accordingly, it is

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ORDERED that Plaintiff, Gerald C. Chavez, file within thirty (30) days from the
date of this order, an Amended Complaint that complies with the directives in this
order. It is
FURTHER ORDERED that Mr. Chavez shall obtain the court-approved Prisoner
Complaint form (with the assistance of his case manager or facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov. Plaintiff shall use the
form in filing his Amended Complaint. It is
FURTHER ORDERED that, if Mr. Chavez fails to file an Amended Complaint
within the time allowed, the Court may dismiss this action, in whole or in part, without
further notice for the reasons discussed above.
DATED August 27, 2015, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher

United States Magistrate Judge

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