Toevs v. Milyard et al
Filing
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ORDER to Dismiss in Part and to Draw Case to a District Judge and a Magistrate Judge. ORDERED that claims two, four, and five are dismissed. Defendants James Falk and Anthony DeCesaro are dismissed as parties to this action. Claims asserted against remaining Defendants and the case are drawn to a district judge and magistrate judge, by Judge Lewis T. Babcock on 3/18/13. (sgrim)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02532-BNB
JANOS TOEVS,
Plaintiff,
v.
KEVIN MILYARD,
TOM CLEMENTS,
ARISTEDES ZAVARAS,
JAMES FALK,
ANTHONY DECESARO,
CAPTAIN WHITNEY,
C. O. MERRILL,
C. O. RALSTON,
BERANDETTE SCOTT,
SGT. CHRISTIANS, all in their official and individual capacities,
Defendants.
ORDER TO DISMISS IN PART AND TO DRAW CASE
TO A DISTRICT JUDGE AND A MAGISTRATE JUDGE
Plaintiff, Janos Toevs, is a prisoner in the custody of the Colorado Department of
Corrections (DOC) who currently is incarcerated at the correctional facility in Sterling,
Colorado. Mr. Toevs initiated the instant action by filing pro se a Prisoner Complaint
(ECF No. 1) pursuant to 42 U.S.C. § 1983 alleging violations of his rights under the
United States Constitution. On January 1, 2013, in response to an order of December
10, 2012 (ECF No. 6), he filed pro se an amended § 1983 Prisoner Complaint (ECF No.
9). Mr. Toevs asks for money damages and injunctive relief.
Mr. Toevs has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to
dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks
monetary relief against a defendant who is immune from such relief. 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). Under § 1983, a plaintiff must allege that the defendants
have violated his or her rights under the Constitution and laws of the United States while
they acted under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150
(1970).
Mr. Toevs is cautioned that his ability to file a civil action or appeal in federal
court in forma pauperis pursuant to § 1915 may be barred if he has three or more
actions or appeals in any federal court that were dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g).
Under § 1915(g), the Court may count dismissals entered prior to the enactment of this
statute. Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).
The Court must construe Mr. Toevs’ amended 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 cannot act
as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the amended complaint will be dismissed in part.
Mr. Toevs asserts five claims for relief: (1) retaliation for the exercise of free
speech, (2) denial of access to the courts, (3) denial of right to send and receive mail,
(4) denial of equal protection, and (5) violation of right to be free from cruel and unusual
punishment.
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1. Retaliation
Mr. Toevs alleges that on October 20, 2010, he attended a mandatory meeting
concerning expectations of inmates housed in the prison’s Incentive Pod (I-Pod), a lessrestrictive living unit where inmates are afforded extra privileges for demonstrating
positive behavior over time. Plaintiff contends that, while addressing inmates on I-Pod
issues, Defendant Kevin Milyard asked him, “Do you have a problem with that?” ECF
No. 1 at 4. When Mr. Toevs responded, “Yes, actually I do,” id., Warden Milyard
directed him to leave the meeting immediately and ordered him removed, at the
warden’s discretion, from the I-Pod. On the basis of these allegations, Mr. Toevs
maintains that he was retaliated against for protected speech, i.e., his comment to the
warden. He also complains that Defendants Captain Whitney, and Correctional Officers
Ralston and Merrill removed him from the I-Pod meeting, and that Defendant Aristedes
Zavaras failed to take remedial steps, apparently to return him to the I-Pod.
This claim will be drawn to a district judge and a magistrate judge.
2. Access to the Courts
Mr. Toevs complains that inadequacies in the prison’s grievance system have
prevented him from bringing non-frivolous claims to court. The claims include
confiscation of (1) a box of legal materials, (2) a hat, and (3) detailed records on the
confiscation of the legal materials and hat. He complains that Defendant Anthony
DeCesaro, a grievance officer, has the authority to determine whether or not claims are
exhausted. He also complains that Defendant, Tom Clements, DOC executive director,
is responsible for creating an inadequate grievance system.
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Mr. Toevs’ second claim is not an arguable claim for violations of Plaintiff’s
constitutional right of access to the courts. Prisoners have a constitutional right of
access to the courts which may require that prison officials provide prisoners with
adequate law libraries or adequate assistance from persons trained in the law. See
Bounds v. Smith, 430 U.S. 817, 821, 828 (1977). Access to counsel is another means
to ensure access to the courts. See Smith v. Maschner, 899 F.2d 940, 944 (10th Cir.
1990) (citing Evans v. Moseley, 455 F.2d 1084, 1087 (10th Cir. 1972) (prisoner's right to
correspond with attorney does not extend to correspondence “on any subject,” but only
to issues implicating access to courts)).
However, to state a claim for violation of the constitutional right to access the
courts, a prisoner “must demonstrate actual injury . . . —that is, that the prisoner was
frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning his
conviction or his conditions of confinement.” Gee v. Pacheco, 627 F.3d 1178, 1191
(10th Cir. 2010) (citing Lewis v. Casey, 518 U.S. 343, 351–55 (1996)). Furthermore, the
right of access to the courts extends only as far as protecting an inmate's ability to
prepare initial pleadings in a civil rights action regarding his or her current confinement
or in an application for a writ of habeas corpus. See Wolff v. McDonnell, 418 U.S. 539,
576 (1974); Carper v. DeLand, 54 F.3d 613, 617 (10th Cir.1995). See also Lewis, 518
U.S. at 354 (disclaiming statements in Bounds suggesting that the State must enable
the prisoner to litigate effectively once in court) (emphasis in the original). Finally, there
is no independent constitutional right to use state grievance procedures. Reed v.
Clements, No. 12-cv-00927-BNB, 2012 WL 3129935, at *3 (D. Colo. July 31, 2012)
(unpublished). Here, Plaintiff does not allege facts to show that he has suffered an
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actual injury as a result of the confiscation of his box of legal materials, hat, and detailed
records on the confiscation of legal materials and hat. He does not allege that he has
been frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning
his conviction or his conditions of confinement in a civil rights action or a habeas corpus
application. Accordingly, claim two will be dismissed as legally frivolous.
3. Mail
Mr. Toevs alleges that in February 2012 he learned the Colorado Prison Law
Project (CPLP) wanted information regarding conditions of confinement at the Sterling
Correctional Facility. He contends he attempted to send information to the CPLP
concerning his first, second, and fifth claims, as well as other documentation including
affidavits of other inmates, but the envelope was intercepted and confiscated as
contraband by Defendant Bernadette Scott. Mr. Toevs maintains that, according to
Defendant Sergeant Christians, the envelope was confiscated because it contained
another offender’s legal work. Specifically, Mr. Toevs asserts it contained a filing sent
to him by an attorney as a template to assist him with his own future work. He also
complains that Defendant Tom Clements promulgated policies that authorized the
confiscation. This claim will be drawn to a district judge and a magistrate judge.
4. Equal Protection
Mr. Toevs alleges that in June 2012 Defendant Warden Falk implemented a
policy providing inmates with differing out-of-cell times for hygiene and recreational and
program needs depending upon their arbitrary housing placement. He specifically
complains that, for five months until he was returned to I-Pod in November 2012, he
arbitrarily was placed in Building 4-B, which allowed him only one and one-half to two
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hours of daily out-of-cell time to exercise, make telephone calls, shower, go to the
library, participate in programs, and attend church. He contends that inmates with the
same sentences for the same crime at his same custody level who were placed in
Building 3 were allowed over thirteen hours daily to accomplish the same activities.
As a result, he complains he was injured by having to skip Bible study several
times to take a shower; skip recreation several times to make phone calls; skip
Narcotics Anonymous to go to the library; and forego making telephone calls or taking a
shower for two to three days on several occasions because he could not get a turn. In
short, the crux of Mr. Toevs’ equal protection claim appears to be that he has had to
choose among priorities.
The Equal Protection Clause requires that no state “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV. “The threshold
requirement of an Equal Protection claim is a showing that the government
discriminated among groups.” Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001).
“A state practice will not require strict judicial scrutiny unless it interferes with a
‘fundamental right' or discriminates against a ‘suspect class' of individuals.” Vasquez v.
Cooper, 862 F.2d 250, 252 (10th Cir. 1988). “Unless a legislative classification either
burdens a fundamental right or targets a suspect class, it need only bear a ‘rational
relation to some legitimate end' to comport with the Equal Protection Clause of the
Fourteenth Amendment.” White v. Colorado, 157 F.3d 1226, 1234 (10th Cir.1998)
(quoting Romer v. Evans, 517 U.S. 620, 631 (1996)) (emphasis added). See also
Vasquez, 862 F.2d at 25152 (“Unless it provokes strict judicial scrutiny, a state practice
that distinguishes among classes of people will typically survive an equal protection
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attack so long as the challenged classification is rationally related to a legitimate
governmental purpose”) (citation omitted).
Mr. Toevs’ allegations do not implicate either a fundamental right or a protected
class. Therefore, when considering his equal protection claim, the Court applies a
rational basis test if “the challenged government action does not implicate either a
fundamental right or a protected class.” Price-Cornelison v. Brooks, 524 F.3d 1103,
1110 (10th Cir. 2008). A person’s right to equal protection is violated when the
government or its officials treat him differently than others who are similarly situated.
See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); Penrod v.
Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996). Equal protection, however, does not
require that all people be treated identically. See Hendking v. Smith, 781 F.2d 850, 851
(11th Cir. 1986); Zeigler v. Jackson, 638 F.2d 776, 779 (5th Cir. 1981).
Mr. Toevs’ allegations fails to demonstrate how his equal protection rights were
violated by his placement in a building that does not afford him as much out-of-cell time
as he would like and as other inmates allegedly receive because of their placement in a
different building. It is not plausible that “there are no relevant differences between [Mr.
Toevs] and other inmates that reasonably might account for their different treatment.”
Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994). As a result, Mr. Toevs cannot
establish that he was treated differently than “similarly situated” inmates. Accordingly,
the equal protection claim will be dismissed.
5. Cruel and Unusual Punishment
As his fifth and final claim, Mr. Toevs asserts a cumulative claim based upon his
allegations in claims one through four. He generally complains that as a result of
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policies created by Defendants Kevin Milyard, Aristedes Zavaras, James Falk, and Tom
Clements, the prison has experienced heightened inmate aggression and increased
abuse by staff. Those policies include the confiscation of legal papers critical of the
DOC; a “zero tolerance” policy allowing staff to deny inmates food as a means of
discipline, ECF No. 9 at 11; a restricted-privileges policy permitting inmates to be
terminated from their jobs, deprived of property, and forced to live in the southwest yard,
where the most violent offenders reside; and a restrictive-movement policy reducing
out-of-cell time for most general population inmates from thirteen to six hours a day.
Mr. Toevs speculates that “[a]t any given moment I could be swept up in a random
outbreak of violence, forced to be locked in a cell with someone I know will try to
seriously injure or kill me, or be moved to the most violent segment of the [f]acility.”
ECF No. 9 at 12.
A prisoner claiming that he has been subjected to cruel and unusual punishment
based on the conditions of his confinement must demonstrate, in part, that the
infringement was sufficiently serious. See Farmer v. Brennan, 511 U.S. 825, 834
(1994). “[E]xtreme deprivations are required to make out a conditions-of-confinement
claim.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). The conditions must deprive a
prisoner of the "‘minimal civilized measure of life’s necessities.’” Wilson v. Seiter, 501
U.S. 294, 298 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). In the
absence “of a specific deprivation of a human need, an Eighth Amendment claim based
on prison conditions must fail.” Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir. 1994)
(internal quotation marks omitted). The core areas entitled to protection pursuant to the
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Eighth Amendment include food, shelter, sanitation, personal safety, medical care, and
adequate clothing. See Clemmons v. Bohannon, 956 F.2d 1523, 1527 (10th Cir. 1992).
Mr. Toevs’ claim focuses on conditions of confinement he finds to be
uncomfortable, inconvenient, disagreeable, or dangerous. The fact that Mr. Toevs
disagrees with the conditions of his confinement does not mean that he is deprived of
the minimal civilized measure of life’s necessities. In fact, as the Supreme Court of the
United States has observed, “[t]o the extent that [prison] conditions are restrictive and
even harsh, they are part of the penalty that criminal offenders pay for their offense
against society.” Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981); see also Battle v.
Anderson, 788 F.2d 1421, 1427-28 (10th Cir. 1986) (affirming that a prison is "not a
nursery school" but a place for confining convicted felons).
However, Mr. Toevs fails to discuss how he has been injured by the conditions of
his confinement. The United States Constitution requires a party seeking to invoke the
jurisdiction of the federal courts to demonstrate that he has suffered some actual or
threatened injury, that the injury was caused by the defendants, and that a favorable
judicial decision is likely to redress the injury. Valley Forge Christian College v.
Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982);
Hackford v. Babbitt, 14 F.3d 1457, 1464 (10th Cir. 1994). Because Mr. Toevs fails to
allege facts demonstrating any actual or threatened injury as a result of the conditions of
his confinement, he lacks standing to assert claims concerning those conditions. See
Citizens Concerned for Separation of Church & State v. City & County of Denver, 628
F.2d 1289, 1295-96 (10th Cir. 1980). Claim five will be dismissed.
Accordingly, it is
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ORDERED that claims two, four, and five are dismissed as legally frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B). It is
FURTHER ORDERED that Defendants James Falk and Anthony DeCesaro are
dismissed as parties to this action. It is
FURTHER ORDERED that claims one asserted against remaining Defendants,
Kevin Milyard, Aristedes Zavaras, Captain Whitney, C. O. Merrill, and C. O. Ralston,
and claim three asserted against remaining Defendants, Tom Clements, Berandette
Scott, and Sgt. Christians, and the case are drawn to a district judge and magistrate
judge.
DATED at Denver, Colorado, this 18th day of
March
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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