Townsend v. Scoleri et al

Filing 5

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 8/25/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01779-GPG
JUVENCIA DARSHA TOWNSEND,
Plaintiff,
v.
LT. JOHN SCOLERI,
LT. JAMES YATES, and
SGT. ALLEN,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, Juvencia Darsha Townsend, is a prisoner in the custody of the Colorado
Department of Corrections at the Denver Women’s Correctional Facility in Denver,
Colorado. Ms. Townsend has filed pro se a Prisoner Complaint (ECF No. 1) pursuant
to 42 U.S.C. § 1983. The court must construe the Prisoner Complaint liberally because
Ms. Townsend 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 (10 th Cir. 1991). However, the
court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Ms.
Townsend will be ordered to file an amended complaint.
Ms. Townsend’s claims relate to disciplinary proceedings that took place at the
La Vista Correctional Facility. She alleges she was charged with a disciplinary violation
on May 23, 2015, after she was seen wearing a religious head scarf outside of her cell.
She further alleges she was convicted of a disciplinary offense following a hearing on

May 29, 2015, and sanctioned with fifteen days of punitive segregation. According to
Ms. Townsend, Sergeant Allen authored the disciplinary report and Lieutenant John
Scoleri and Lieutenant James Yates were the hearing officers at her disciplinary
hearing. Ms. Townsend specifically asserts two claims for relief, a retaliation claim and
a due process claim. She seeks damages as relief.
The Prisoner Complaint is deficient. First, Ms. Townsend fails to allege specific
facts that demonstrate each Defendant personally participated in the asserted
constitutional violations. “Individual liability under § 1983 must be based on personal
involvement in the alleged constitutional violation.” Foote v. Spiegel, 118 F.3d 1416,
1423 (10th Cir. 1997). Thus, allegations of “personal participation in the specific
constitutional violation complained of [are] essential.” Henry v. Storey, 658 F.3d 1235,
1241 (10th Cir. 2011).
In addition, Ms. Townsend fails to allege specific facts in support of her claims
that demonstrate she is entitled to relief. Vague and conclusory allegations that her
federal constitutional rights have been violated do not entitle a pro se pleader to a day
in court regardless of how liberally the court construes such pleadings. See Ketchum v.
Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991), aff’d, 961 F.2d 916 (10 th Cir. 1992).
The general rule that pro se pleadings must be construed liberally has limits and “the
court cannot take on the responsibility of serving as the litigant’s attorney in
constructing arguments and searching the record.” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10 th Cir. 2005). Thus, “in analyzing the sufficiency of the
plaintiff’s complaint, the court need accept as true only the plaintiff’s well-pleaded
factual contentions, not [her] conclusory allegations.” Hall, 935 F.2d at 1110.
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With respect to the retaliation claim, prison officials may not retaliate against an
inmate for exercising her constitutional rights. See Peterson v. Shanks, 149 F.3d 1140,
1144 (10th Cir. 1998). To state a retaliation claim Ms. Townsend must demonstrate: (1)
she was engaged in constitutionally protected activity, (2) Defendant’s actions caused
her to suffer an injury that would chill a person of ordinary firmness from continuing to
engage in that activity, and (3) Defendant’s adverse action was substantially motivated
as a response to Plaintiff’s constitutionally protected activity. See Allen v. Avance, 491
F. App’x 1, 6 (10th Cir. 2012). Ms. Townsend fails to allege facts that demonstrate she
was engaged in constitutionally protected activity or that any adverse action was
substantially motivated as a response to her constitutionally protected activity.
With respect to the due process claim, Ms. Townsend fails to allege facts that
demonstrate she was deprived of a constitutionally protected liberty interest. “For
inmates being punished for misconduct, a liberty interest exists only when the penalty
lengthens the confinement or involves 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 (10 th Cir. 2013) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Ms.
Townsend does not allege that the disciplinary conviction she is challenging resulted in
a lengthened sentence and confinement in punitive segregation for fifteen days is not
an atypical and significant hardship in relation to the ordinary incidents of prison life.
See Sandin, 515 U.S. at 486 (holding that thirty days in disciplinary segregation did not
implicate a protected liberty interest); 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).
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Furthermore, even if Ms. Townsend was deprived of a constitutionally protected
liberty interest, she fails to allege facts that demonstrate she was denied the minimum
due process required at a prison disciplinary hearing. When a constitutionally protected
liberty interest is implicated in prison disciplinary proceedings,
the inmate must receive: (1) advance written notice of the
disciplinary charges; (2) an opportunity, when consistent with
institutional safety and correctional goals, to call witnesses
and present documentary evidence in his defense; and (3) a
written statement by the factfinder of the evidence relied on
and the reasons for the disciplinary action.
Superintendent v. Hill, 472 U.S. 445, 454 (1985) (citing Wolff v. McDonnell, 418 U.S.
539, 563-67 (1974)). Although Ms. Townsend alleges she was not allowed to call
witnesses, she does not allege facts that demonstrate the witnesses would have
provided testimony relevant to the offense she was convicted of committing.
Finally, Ms. Townsend fails to allege facts that would support an arguable claim
against Defendants in their official capacities. Official capacity suits “generally
represent only another way of pleading an action against an entity of which an officer is
an agent.” Monell v. Department of Social Services, 436 U.S. 658, 690 n.55 (1978).
Therefore, to the extent Ms. Townsend is asserting her claims against Defendants in
their official capacities, the claims must be construed as claims against the State of
Colorado. However, Ms. Townsend’s claims for damages against the State of Colorado
are barred by the Eleventh Amendment. See Will v. Michigan Dep’t of State Police,
491 U.S. 58, 66 (1989).
For these reasons, Ms. Townsend will be ordered to file an amended complaint.
Ms. Townsend should name as Defendants only those persons she contends actually

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violated her federal constitutional rights. She “must explain what each defendant did to
him or her; when the defendant did it; how the defendant’s action harmed him or her;
and, what specific legal right the plaintiff believes the defendant violated.” Nasious v.
Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10 th Cir. 2007). Accordingly, it is
ORDERED that Ms. Townsend file, within thirty (30) days from the date of
this order, an amended complaint as directed in this order. It is
FURTHER ORDERED that Ms. Townsend 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. It is
FURTHER ORDERED that, if Ms. Townsend fails to file an amended complaint
that complies with this order within the time allowed, the action will be dismissed.
DATED August 25, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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