Handy v. Jones et al

Filing 5

ORDER TO AMEND by Magistrate Judge Gordon P. Gallagher on 12/2/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02559-GPG
WYATT T. HANDY JR.,
Plaintiff,
v.
GREG JONES,
MRS. LAMLE,
HEBERT,
MRS. WISE,
TIFFANY DAVIS,
MR. ELWOOD,
MRS. BLAKE,
SGT. SCRUGGS,
SGT. GONZALES, and
CORRECTIONS CORPORATION OF AMERICA,
Defendants.

ORDER TO AMEND

Plaintiff Wyatt T. Handy Jr. is a pro se litigant who currently lives in Denver,
Colorado. Plaintiff initiated this action by filing a Complaint pursuant to 42 U.S.C.
' 1983 and 28 U.S.C. ' 1343, that challenges the conditions of his confinement while he
was incarcerated from December 2013 to June 2014 at the Colorado Department of
Corrections Kit Carson Correctional Center. In particular, Plaintiff asserts a violation of
his First, Fourth, and Fourteenth Amendment rights along with state law claims, when
certain named defendants opened, searched, and in some cases took and kept items
sent to him in his mail. Plaintiff seeks money damages and declaratory and injunctive
relief.
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Plaintiff also submitted an Application to Proceed in District Court Without
Prepaying Fees or Costs. The Application was granted on December 2, 2015.
The Court must construe Plaintiff=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 act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Plaintiff will be directed to file
an Amended Complaint for the reasons stated below.
First, Plaintiff fails to provide an address for Defendant Corrections Corporation of
America. Second, Plaintiff asserts claims against the majority of the named defendants,
but he fails to assert how several named defendants participated in the violation of his
rights under ' 1983.
Plaintiff is very familiar with the filing requirements in this Court, as he has filed at
least fifteen actions in this Court over the past fourteen years. He has been instructed on
more than one occasion that to state a claim in federal court he 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).
Plaintiff also has been instructed that he must assert personal participation by
each 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
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direction, or failure to supervise. See Butler v. City of Norman, 992 F.2d 1053, 1055
(10th Cir. 1993).
Plaintiff also is aware that supervisors can only be held liable for their own
misconduct. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A supervisor cannot
incur liability under ' 1983 for his mere knowledge of a subordinate=s wrongdoing. Id.;
see also Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (A[Section] 1983 does
not recognize 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.@). Furthermore,
when a plaintiff sues an official under Bivens or ' 1983 for
conduct Aarising 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: A(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.
Furthermore, mere conclusory allegations of conspiracy with no supporting factual
assertions are insufficient. Scott v. Hern, 216 F.3d 897, 907 (10th Cir. 2000) (citations
omitted). Pleadings must present specific facts that show agreement and concerted

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action by the defendants. Id. Plaintiff fails to present any specific facts that show
agreement and a concerted action.
In regard to Plaintiff=s expectation of privacy claim (Fourth Amendment violation),
the Supreme Court has held that A[a] right of privacy in traditional Fourth Amendment
terms is fundamentally incompatible with the close and continual surveillance of inmates
and their cells required to ensure institutional security and internal order.@ Hudson v.
Palmer, 468 U.S. 517, 527B28 (1984). In Hudson, the Supreme Court established that
prisoners do not have any reasonable expectation of privacy in their prison cells or in
articles that they have in their possession while in prison. Id. at 525B28.
The Tenth Circuit has stated that, Aprisoners are not protected under the Fourth
Amendment from unreasonable searches of their prison cells or from the wrongful seizure
of property contained in their cells because >the Fourth Amendment does not establish a
right to privacy in prisoners= cells.= @ RodriguezBRodriguez v. United States, 4 F. App=x
637, 639 (10th Cir.2001) (unpublished) (quoting Hayes v. Marriott, 70 F.3d 1144, 1146
(10th Cir.1995)) (finding that the plaintiff's Fourth Amendment claim arising from prison
officials= search and seizure in his prison cell fails).
Prisoners have no right to privacy with respect to periodic cell searches. Hudson,
468 U.S. at 529B30 (Aprisoners have no legitimate expectation of privacy and
[ ] Fourth Amendment's prohibition on unreasonable searches does not apply in prison
cells@); see also Garcia v. Lawrence, 118 F. App=x 436, 438 (10th Cir.2004)
(unpublished). AThat prison officials may inspect or examine the effects and
communications of prison inmates without depriving the inmates of their constitutional
rights is well established.@ Denson v. United States, 424 F.2d 329, 331 (10th Cir. 1970)
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(citing Cox v. Crouse, 376 F.2d 824 (10th Cir.1967)). Accordingly, Plaintiff's Fourth
Amendment claim, as presented, is meritless.
Also, the United States Constitution guarantees due process when a person is
deprived of life, liberty, or property. See Templeman v. Gunter, 16 F.3d 367, 369 (10th
Cir. 1994). However, Aneither 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 Apresumption of adequate due process@ that Amay 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 Aspecific facts@ showing that the
remedy was Aunresponsive 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 A[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.
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Aug. 25, 2010) (unpublished) (noting that A[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 Kit Carson Correctional Center=s grievance
procedure was unresponsive or inadequate with respect to the loss of his property.
Simply because a grievance procedure or appeal was not decided in Plaintiff=s favor does
not equate to an unresponsive or inadequate remedy. Plaintiff=s property claim,
therefore, as presented, is meritless. Accordingly, it is
ORDERED that Plaintiff shall have thirty days from the date of this Order to file
an Amended Complaint as directed above. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Complaint
form, along with the applicable instructions, at www.cod.uscourts.gov, to be used in filing
the Amended Complaint. It is
FURTHER ORDERED that if Plaintiff fails to comply within the time allowed the
Court will address the claims pursuant to the federal rules of civil procedure and dismiss
improper and insufficient claims accordingly.
DATED December 2, 2015, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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