Faircloth v. Colo. Dept. of Corrections et al

Filing 6

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT by Magistrate Judge Gordon P. Gallagher on 4/27/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00908-GPG
JAMES FAIRCLOTH,
Plaintiff,
v.
COLO. DEPT. OF CORRECTIONS - CDOC,
RICK RAEMISCH, Executive Director of CDOC,
MICHAEL MILLER, Warden of Crowley Corr. Fac.,
DAVE ZUPAN, Asst. Warden of Crowley Corr. Fac.,
DAMON HININGER, CEO of C.C.A.,
CORRECTIONS CORPORATION OF AMERICA,
IAN HOLCOMB, Crowley Mailroom Personnel Chief, and
LT. BAZONA, Mailroom Lt. @ CMC-FMCC,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff, James Faircloth, is a prisoner in the custody of the Colorado Department
of Corrections (CDOC) at the Crowley County Correctional Facility in Olney Springs,
Colorado (“CCF”). He initiated this action by filing pro se a Prisoner Complaint (ECF
No. 1) pursuant to 42 U.S.C. ' 1983 and 28 U.S.C. ' 1343. Mr. Faircloth has been
granted leave to proceed in forma pauperis.
The Court must construe the Complaint liberally because Mr. Faircloth 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 discussed
below, Mr. Faircloth will be directed to file an amended prisoner complaint.
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I.

The Complaint
Plaintiff states that the case “is a prison condition of confinement and stoppage of

the U.S. mail(s) issue involving the named defendants and C.C.A. and CDOC as
involved parties in the stoppage of the Plaintiff’s legal mail without good cause other
than the nefarious reasons disguised as policy to give themselves some type of
plausible deniability to negate their conspiracy to violate my rights to access the courts
meaningfully and adequately.” (ECF No. 1, at 5). He alleges that Defendant Bazona
“committed a PREA-sexual harassment of my person while doing a strip search on or
about October 21, 2015” and that he submitted a PREA (Prison Rape Elimination Act)
report. (Id., at 6). Plaintiff further alleges that Defendant Bazona “implemented the
$2.00 mail outgoing” postage restriction after Plaintiff filed a grievance against
corrections officer Wagner who told Plaintiff he “was trying to get my case against Lt.
Bazona dismissed by interfering with my ability to litigate in all my cases so I could no
longer access the Courts effectively.” (Id.). Plaintiff further alleges that Defendant
Zupan told him that he placed the mail restriction on Plaintiff’s outgoing mail on March
17, 2016 in “reprisal” for Plaintiff’s PREA report against Defendant Bazona. (Id.). He
contends that he has contacted Defendants Raemisch, Miller, Zupan, Hininger,
Holcomb, Bazona, and CDOC to complain about the postage restriction and retaliation,
but they have failed to respond. (Id., at 6-7). In the Complaint, Mr. Faircloth asserts
three claims for relief and requests declaratory, injunctive, and monetary relief.
Claim One: Plaintiff alleges that Defendants have conspired to deprive him of
his constitutional right of access to the courts by stopping Plaintiff’s outgoing legal mail
from being “sent to lawyers, courts, public officials for remedy in his open civil and
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criminal cases.” (ECF No. 1, at 8). Plaintiff further alleges that “cases have been
dismissed and others are in danger of dismissal because of Defendants acts in stopping
and singling out my outgoing legal mail to be stopped.” (Id.).
Claim Two: Plaintiff asserts that Defendants have violated his First Amendment
rights because they have “caused a known retaliation and failed to stop each other and
have complied with each other’s efforts to enact a reprisal and use policy in A.R. 30038, IV, B-8 a&b to implement their reprisal knowing it singled me out and reprised my
access to Courts and hindered by ability to litigate against them and their colleagues.”
(ECF No. 1, at 9). He contends that Defendants have retaliated against him for the
PREA report against Defendant Bazona and Civil Action No. 12-cv-03317-REB-KLM.
(Id., at 10). He further alleges that he has sent letters, notices, and complaints to
Defendants Raemisch, Hininger, Miller, and Zupan. (Id.). He also asserts that he was
placed in segregation on or about April 12, 2016 for filing a grievance about putting him
in a “dangerous and infectious environment and not following protocol for prophylaxis of
chickenpox.” (Id., at 7).
Claim Three: Plaintiff alleges that Defendants have violated his Fourteenth
Amendment due process and equal protection rights by stopping his mail based on his
indigent status. (ECF No. 1, at 11). He further asserts that non-indigent prisoners are
treated differently. (Id.).
II.

Analysis
A. Vague and conclusory allegations
The Complaint is deficient because Mr. Faircloth’s claims are based on vague

and conclusory allegations that his federal constitutional rights have been violated.
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Conclusory allegations 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 (10th Cir. 1992). Furthermore, 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 (10th 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 his conclusory allegations.” Hall, 935 F.2d at 1110.
In order to state a cognizable claim in federal court Mr. Faircloth must identify the
specific factual allegations that support each claim, against which Defendant or
Defendants he is asserting each claim, and what each Defendant did that allegedly
violated his rights. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163
(10th Cir. 2007) (noting that, to state a claim in federal court, “a complaint 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”).
A. Eleventh Amendment Immunity
The Complaint also is deficient because the State of Colorado and its entities,
including 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
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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). Claims asserted against the
individual Defendants in their official capacities are construed as claims against the
State of Colorado, see Hafer v. Melo, 502 U.S. 21, 25 (1991), and are also barred by
the Eleventh Amendment. Accordingly, the Colorado Department of Corrections is not
a proper party to this action and should not be named as a defendant in the amended
complaint. Moreover, Mr. Faircloth may not sue the individual Defendants, in their
official capacities, for monetary or retrospective equitable relief.
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 a 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).
B. Personal Participation
Mr. Faircloth also fails to allege specific facts that demonstrate that each of the
Defendants personally participated in the asserted constitutional violations. Personal
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participation is an essential allegation in a § 1983 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); 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 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.”). 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.” Dodds, 614 F.3d at 1199.
In the amended complaint, Mr. Faircloth must allege specific facts to show how
each named Defendant was personally involved in a deprivation of his constitutional
rights. Further, Plaintiff is reminded that a Defendant such as Rick Raemisch, the
Director of the Colorado Department of Corrections, Damon Hininger, CEO of C.C.A., or
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the Wardens of CCCF, may not be held liable on the basis that they did not respond to
or denied Plaintiff’s grievances. The Adenial 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 Athe 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
Acorrespondence [to high-ranking prison official] outlining [a] complaint . . . without more,
does not sufficiently implicate the [supervisory official] under ' 1983@).
C. Denial of Access to the Courts
Mr. Faircloth primarily asserts that he has been denied his constitutional right of
access to the courts because he has been placed on a postage restriction of no more
than $2.00 per month in outgoing legal mail postage pursuant to CDOC policy.
To state an arguable claim, Plaintiff must plead facts to show that he was
impeded in his ability to file a civil rights action. See Lewis v. Casey, 518 U.S. 343,
354–55 (1996) (plaintiff must allege that the state's interference led to an “actual injury”
by “frustrat[ing],” “imped[ing],” or “hinder[ing] his efforts to pursue a legal claim”); see
also Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir.1998) (“To present a viable
claim for denial of access to courts, however, an inmate must allege and prove
prejudice arising from Defendants' actions.”). Because Plaintiff was successful in filing
the instant civil rights action, it appears he would not be able to adequately assert a
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viable claim for denial of access to the courts. To assert a plausible access to the
courts claim in the amended complaint, Mr. Faircloth must allege facts, as opposed to
conclusory assertions, that demonstrate he has suffered an injury in his ability to pursue
a nonfrivolous legal claim.
D. Retaliation
Mr. Faircloth also makes conclusory assertions that Defendants have retaliated
against him for filing grievances, pursuing claims in civil rights actions, and making a
PREA report against Defendant Bazona.
Prison officials may not retaliate against an inmate for exercising his
constitutional rights. See Peterson v. Shanks , 149 F.3d 1140, 1144 (10th Cir. 1998).
To state a retaliation claim Mr. Faircloth must demonstrate: (1) he was engaged in
constitutionally protected activity, (2) Defendant’s actions caused him 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 Shero v. City of Grove, 510 F.3d 1196,
1203 (10th Cir.2007).
“Mere allegations of constitutional retaliation will not suffice; plaintiffs must rather
allege specific facts showing retaliation because of the exercise of the prisoner's
constitutional rights.” Gee, 627 F.3d at 1191 (quoting Frazier v. Dubois, 922 F.2d 560,
562 n. 1 (10th Cir. 1991)). Mr. Faircloth does not allege specific facts in the Complaint
to show that a particular defendant retaliated against him because of his exercise of
constitutional rights, and that he suffered an injury that would chill a person of ordinary
firmness from continuing to engage in constitutionally protected activity.
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E. Due Process
Mr. Faircloth claims that the outgoing mail restriction has violated his Fourteenth
Amendment due process rights. To state an arguable due process claim, Mr. Faircloth
must allege facts that demonstrate he intentionally was deprived of a constitutionally
protected interest in life, liberty, or property. See Templeman v. Gunter, 16 F.3d 367,
369 (10th Cir. 1994). The existence of a constitutionally protected liberty interest
depends upon the nature of the interest asserted. See Sandin v. Conner, 515 U.S. 472,
480 (1995). A prisoner is not entitled to any procedural protections in the absence of a
grievous loss. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Generally, a liberty
interest protected by due process may arise under the United States Constitution or
state law. See Sandin, 515 U.S. at 483-84. State law may create a liberty interest if it
imposes an “atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin, 515 U.S. at 484. 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 the conditions
relate to and further a legitimate penological interest, whether the conditions are
extreme, whether the conditions increase the duration of confinement, and whether the
conditions are indeterminate. See DiMarco v. Wyo. Dep’t of Corr., 473 F.3d 1334, 1342
(10th Cir. 2007).
Mr. Faircloth will be directed to file an amended complaint in which he alleges
specific facts to show that the conditions of his confinement impose an atypical and
significant hardship in relation to the ordinary incidents of prison life. Again, conclusory
allegations that he was denied due process are insufficient.
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F. Equal Protection
Finally, Mr. Faircloth asserts an equal protection violation based on the outgoing
mail restrictions placed on him as a pro se indigent prisoner. In support of his equal
protections claim, he relies on conclusory assertions of disparate treatment.
In order to state an arguable equal protection claim, Mr. Faircloth must allege
specific facts to demonstrate he intentionally was treated differently than similarly
situated inmates. See Penrod, 94 F.3d at 1406. “Equal protection of the laws doesn’t
guarantee equal results for all.” SECSYS, LLC v. Vigil, 666 F.3d 678, 684 (10th Cir.
2012) (internal quotation marks omitted). Instead, the Equal Protection Clause “seeks
to ensure that any classifications the law makes are made without respect to persons,
that like cases are treated alike, that those who appear similarly situated are not treated
differently without, at the very least, a rational reason for the difference.” Id. (internal
quotation marks omitted). Mr. Faircloth’s equal protection claim is based on conclusory
assertions, rather than specific facts showing disparate treatment.
Accordingly, it is
ORDERED that Mr. Faircloth file, within thirty (30) days from the date of this
order, an Amended Prisoner Complaint that complies with the directives in this Order.
It is
FURTHER ORDERED that Mr. Faircloth 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 Mr. Faircloth fails to file an amended complaint that
complies with this order within the time allowed, some or all of the action may be
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dismissed without further notice.
DATED April 27, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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