Faircloth v. Schwartz, et al
Filing
60
ORDER to Dimiss in Part and to Draw Case to a District Judge and to a Magistrate Judge. ORDERED that claims two through eighteen, twenty, twenty- two, and twentythree in the revised second amended Prisoner Complaint 57 are dismissed. Defendant s John Davis, David Cotten, R. Fisher, A. Hysjulien, Mr. Anderson, Mr. Tancik, Mr. Shields, and Tom Clements are dismissed as parties to this action. This case shall be drawn to a district judge and to a magistrate judge, by Judge Lewis T. Babcock on 3/25/13. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02764-BNB
JAMES FAIRCLOTH,
Plaintiff,
v.
CELIA SCHWARTZ, Legal Assistant for BVCF, Individual and Official Capacities,
JOHN DAVIS, Warden for BVCF, Individual and Official Capacities,
DAVID COTTEN, Major/Administrative Head for BVCF, Individual and Official
Capacities,
R. FISHER, Captain/Shift Commander for BVCF, Individual and Official Capacities,
A. HYSJULIEN, Lieutenant/Shift Supervisor for BVMC, Individual and Official
Capacities,
MR. ANDERSON, Captain/Shift Leader for BVMC, Individual and Official Capacities,
MR. TANCIK, Correctional Officer for BVMC, Individual and Official Capacities,
MR. SHIELDS, Lieutenant/Shift Supervisor for BVMC, Individual and Official Capacities,
MR. GERRY BLAND, Hearings Officer for BVMC/BVCF, Individual and Official
Capacities,
TOM CLEMENTS, Executive Director of Colorado Department of Corrections, Individual
and Official Capacities, and
MRS. MURRAY, Food Service Sergeant BVMC/BVCF, Individual and Official
Capacities,
Defendants.
ORDER TO DISMISS IN PART AND TO DRAW CASE
TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE
I. PROCEDURAL BACKGROUND
Plaintiff, James Faircloth, is a prisoner in the custody of the Colorado Department
of Corrections (DOC) at the Crowley County Correctional Facility in Olney Springs,
Colorado. Mr. Faircloth initiated this action by filing pro se a letter to the Court outlining
certain constitutional claims he wished to pursue regarding his incarceration at a prison
facility in Buena Vista, Colorado. He filed his original Prisoner Complaint (ECF No. 24)
on November 21, 2012. Mr. Faircloth also filed at least four requests to supplement or
amend the Prisoner Complaint but he did not submit an amended pleading with any of
these requests. On December 10, 2012, Magistrate Judge Boyd N. Boland ordered Mr.
Faircloth to file an amended complaint that includes all of the claims he wishes to
pursue in this action and that names as Defendants all of the individuals he is asserting
those claims against. Magistrate Judge Boland also advised Mr. Faircloth that, for each
claim he asserts, he “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 (10th Cir. 2007). On January 2, 2013, Mr. Faircloth filed
an amended Prisoner Complaint (ECF No. 42).
On January 17, 2013, Magistrate Judge Boland ordered Mr. Faircloth to file a
second amended complaint that includes the names of all Defendants in the caption
and that includes a short and plain statement of his claims showing that he is entitled to
relief as required pursuant to Rule 8 of the Federal Rules of Civil Procedure. Magistrate
Judge Boland specifically noted that Mr. Faircloth failed to identify who he was suing
with respect to each asserted claim, failed to allege clearly and concisely what each
Defendant did that allegedly violated his rights, and failed to identify the specific factual
allegations that supported each asserted claim. On March 5, 2013, Mr. Faircloth filed a
second amended Prisoner Complaint (ECF No. 54), and on March 8, 2013, he filed a
revised version of the second amended Prisoner Complaint (ECF No. 57). The Court
will address Mr. Faircloth’s claims as they are set forth in the revised second amended
2
Prisoner Complaint (ECF No. 57).
II. LEGAL STANDARDS
The Court must construe the revised second amended Prisoner 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). If
the revised second amended Prisoner Complaint reasonably can be read “to state a
valid claim on which the plaintiff could prevail, [the Court] should do so despite the
plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his
poor syntax and sentence construction, or his unfamiliarity with pleading requirements.”
Hall, 935 F.2d at 1110. However, the Court should not be an advocate for a pro se
litigant. See id.
Pursuant to 28 U.S.C. § 1915A, the Court must review Mr. Faircloth’s claims in
the revised second amended Prisoner Complaint because he is a prisoner and he is
seeking redress from officers or employees of a governmental entity. Pursuant to §
1915A(b)(1), the Court is required to dismiss the revised second amended Prisoner
Complaint, or any portion of the revised second amended Prisoner Complaint, that is
frivolous. 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. See Neitzke v. Williams, 490 U.S. 319, 324 (1989). For the reasons stated
below, the Court will dismiss the revised second amended Prisoner Complaint in part as
legally frivolous.
III. FACTUAL BACKGROUND
Mr. Faircloth’s claims in this action stem primarily from a series of incidents in the
3
prison law library beginning on October 10, 2012. Mr. Faircloth alleges that he was
removed from the law library on that date after a dispute with the law librarian,
Defendant Celia Schwartz, which resulted in Mr. Faircloth being charged with the prison
disciplinary offense of making threats. Mr. Faircloth further alleges that he was
removed from the general population and placed in segregation as a result of the
disciplinary charge and that he remained in segregation until October 23, 2012, when
he was found not guilty following a disciplinary hearing.
Mr. Faircloth contends that on November 16, 2012, Defendant Schwartz denied
him access to a computer in the law library. Mr. Faircloth maintains that he needed
access to the computer to prepare papers in support of a motion for a temporary
restraining order to be filed in the instant action. The Court notes that Mr. Faircloth has
filed three motions in this action seeking preliminary injunctive relief that were denied in
orders entered on December 10 and 28, 2012. (See ECF Nos. 31 & 41.)
Another incident in the prison law library occurred on November 28, 2012, when
Mr. Faircloth contends he was denied certain computer-generated documents he
needed to file in two cases in the Colorado Court of Appeals in order to meet a deadline
on November 29, 2012. According to Mr. Faircloth, he returned to the law library on
November 30, 2012, to prepare a document explaining his inability to meet that deadline
when he again was removed from the law library, placed in segregation, and charged
with the prison disciplinary offenses of disobeying a lawful order and advocating a
facility disruption. Mr. Faircloth asserts that he was found guilty of these charges
following a disciplinary hearing on December 11, 2012, and that he remained in
segregation until January 7, 2013.
4
IV. ANALYSIS
Mr. Faircloth asserts a total of twenty-three claims for relief in the revised second
amended Prisoner Complaint against eleven defendants.
Claim One
Mr. Faircloth first claims that Defendant Schwartz retaliated against him for filing
or threatening to file grievances in violation of his First Amendment rights when she filed
false disciplinary reports against him on October 10 and November 30, 2012. The
Court will not address the merits of claim one at this time.
Claim Two
Mr. Faircloth contends in claim two that Defendant Schwartz subjected him to
cruel and unusual punishment in violation of the Eighth Amendment by ordering that he
be placed in solitary confinement on October 10 and November 30, 2012, when the
disciplinary charges were filed against him. This claim lacks merit.
“The Eighth Amendment’s prohibition of cruel and unusual punishment imposes a
duty on prison officials to provide humane conditions of confinement, including
adequate food, clothing, shelter, sanitation, medical care, and reasonable safety from
bodily harm.” Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008). In order to assert a
cognizable claim under the Eighth Amendment, Mr. Faircloth must allege that prison
officials were deliberately indifferent to a substantial risk of serious harm. See Farmer
v. Brennan, 511 U.S. 825, 834 (1994). Stated another way, Mr. Faircloth must
demonstrate both that the injury he suffered was sufficiently serious and that prison
officials acted with deliberate indifference. See Tafoya, 516 F.3d at 916.
Mr. Faircloth alleges in support of claim two only that he was not allowed “to
5
participate in facility programs or other protected liberty interests to socialize and/or
even practice his religion of Native American Indian offered in or out of solitary
confinement.” (ECF No. 57-1 at 2.) This allegation is not sufficient to demonstrate Mr.
Faircloth was subjected to cruel and unusual punishment when he was placed in solitary
confinement because “extreme deprivations are required to make out a conditions-ofconfinement claim.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). The Eighth
Amendment is not violated unless the conditions 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)). Mr. Faircloth does not allege
he was deprived of the minimal civilized measure of life’s necessities when he was
placed in solitary confinement, such as “food, clothing, shelter, sanitation, medical care,
and reasonable safety from bodily harm.” Tafoya, 516 F.3d at 916.
In addition, Mr. Faircloth fails to allege facts that demonstrate Defendant
Schwartz acted with deliberate indifference. Deliberate indifference means that “a
prison official may be held liable . . . only if [s]he knows that inmates face a substantial
risk of serious harm and disregards that risk by failing to take reasonable measures to
abate it.” Farmer, 511 U.S. at 847. That is, “the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists,
and [s]he must also draw the inference.” Id. at 837. Mr. Faircloth fails to allege any
facts that demonstrate Defendant Schwartz knowingly disregarded a substantial risk of
serious harm. Therefore, claim two is legally frivolous and must be dismissed.
Claim Three
Mr. Faircloth alleges in claim three that Defendant Schwartz violated his
6
Fourteenth Amendment rights to due process and equal protection by failing to comply
with various DOC administrative regulations and procedures. This claim lacks merit and
will be dismissed as legally frivolous because “a failure to adhere to administrative
regulations does not equate to a constitutional violation.” Hovater v. Robinson, 1 F.3d
1063, 1068 n.4 (10th Cir. 1993).
Claim Four
Mr. Faircloth alleges in claim four that Defendant Schwartz “acted with deliberate
indifference/invidious discriminatory animus.” (ECF No. 57-1 at 3.) He does not allege
any facts in support of claim four that are different from his other claims against
Defendant Schwartz. Therefore, claim four will be dismissed as legally frivolous
because the claim is repetitive of his other claims against Defendant Schwartz.
Claim Five
Mr. Faircloth alleges in claim five that Defendant Schwartz violated his
constitutional right of access to the courts. “[T]he fundamental constitutional right of
access to the courts requires prison authorities to assist inmates in the preparation and
filing of meaningful legal papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817,
828 (1977). However, a prisoner’s access to the courts claim lacks merit in the absence
of an actual injury in the prisoner’s ability to pursue a nonfrivolous legal claim. See
Lewis v. Casey, 518 U.S. 343, 349-55 (1996); Penrod v. Zavaras, 94 F.3d 1399, 1403
(10th Cir. 1996) (per curiam).
Mr. Faircloth alleges in support of his access to the courts claim that Defendant
Schwartz denied him access to legal materials on October 10, 2012, relevant to an
7
unspecified legal action; denied him access to a computer on November 16, 2012, that
he contends he needed to use to prepare documents in the instant action; interfered
with his efforts on November 28, 2012, to file a motion for extension of time and
designation of record in two appeals in the Colorado Court of Appeals in advance of a
November 29, 2012 deadline; and interfered with his efforts on November 30, 2012, to
prepare a document explaining his inability to meet the November 29 deadline.
However, he fails to identify any actual injury with respect to his court cases as a result
of these actions.
In the January 17 order directing Mr. Faircloth to file a second amended
complaint, Magistrate Judge Boland specifically advised Mr. Faircloth that he must
identify an actual injury with respect to his efforts to litigate his court cases in order to
state a cognizable access to the courts claim. Despite this advisement, Mr. Faircloth
fails to allege that he suffered any injury with respect to his court cases. He does not
allege that his state court appeals were dismissed as a result of the missed deadline
and he has not suffered any actual injury in his ability to litigate the instant action.
Although Mr. Faircloth alleges he was forced to file a motion for extension of time in the
instant action, that fact does not demonstrate he suffered an actual injury. Therefore,
claim five also will be dismissed as legally frivolous.
Claim Six
Mr. Faircloth next claims that Defendant John Davis, the warden at the Buena
Vista Correctional Facility, subjected him to cruel and unusual punishment “by failing to
correct the actions during his review of the incidents” when Mr. Faircloth was placed in
solitary confinement on October 10 and November 30, 2012. (ECF No. 57-1 at 6.) This
8
claim lacks merit because, as discussed above in the context of the Eighth Amendment
claim against Defendant Schwartz, Mr. Faircloth fails to allege facts that demonstrate he
was deprived of the minimal civilized measure of life’s necessities when he was placed
in solitary confinement. See Wilson, 501 U.S. at 298. The claim also lacks merit
because Mr. Faircloth fails to allege facts that demonstrate Defendant Davis knowingly
disregarded a substantial risk of serious harm. See Farmer, 511 U.S. at 847.
Therefore, claim six also will be dismissed as legally frivolous.
Claim Seven
Mr. Faircloth alleges in claim seven that Defendant Davis, “having direct
knowledge of the plaintiff/petitioner being in solitary confinement, as well as, having it
within his power to act in the best interest of justice but, refusing to intervene constitutes
Mr. JOHN DAVIS acting in conflict of interest to his duties as Warden/Administrative
Head.” (ECF No. 57-1 at 6.) This claim lacks merit and will be dismissed as legally
frivolous because the vague and conclusory allegation that Defendant Davis had a
conflict of interest does not demonstrate the existence of a constitutional violation.
Claim Eight
Mr. Faircloth alleges in claim eight that Defendant Dave Cotten, a major at the
Buena Vista Correctional Facility, violated his Eighth Amendment rights by failing to
intervene when Mr. Faircloth was placed in solitary confinement on October 10 and
November 30, 2012. This claim will be dismissed for the same reasons discussed
above in connection with claim six, Mr. Faircloth’s nearly identical Eighth Amendment
claim against Defendant Davis.
Claim Nine
9
Mr. Faircloth alleges in claim nine that Defendant Cotten, “having direct
knowledge of the plaintiff/petitioner being in solitary confinement, as well as, having it
within his power to act in the best interest of justice but, refusing to intervene constitutes
Mr. Dave Cotten acting in deliberate indifference.” (ECF No. 57-1 at 7.) This claim
lacks merit and will be dismissed as legally frivolous because the vague and conclusory
allegation that Defendant Cotten acted with deliberate indifference does not
demonstrate the existence of a constitutional violation. To the extent claim nine could
be construed as an Eighth Amendment claim, it is repetitive of claim eight and must be
dismissed for the same reasons claim eight will be dismissed.
Claim Ten
Mr. Faircloth alleges in claim ten that Defendant R. Fisher, a captain at the
Buena Vista Correctional Facility, violated his Eighth Amendment rights by failing to
intervene when Mr. Faircloth was placed in solitary confinement on October 10, 2012.
This claim will be dismissed for the same reasons discussed above in connection with
claim six, Mr. Faircloth’s nearly identical Eighth Amendment claim against Defendant
Davis.
Claim Eleven
Mr. Faircloth alleges in claim eleven that Defendant Fisher, “having direct
knowledge of the plaintiff/petitioner being in solitary confinement, as well as, having it
within his power to act in the best interest of justice but, refusing to intervene constitutes
Mr. R. Fisher acting in deliberate indifference.” (ECF No. 57-1 at 8.) This claim lacks
merit and will be dismissed as legally frivolous because the vague and conclusory
allegation that Defendant Fisher acted with deliberate indifference does not
10
demonstrate the existence of a constitutional violation. To the extent claim eleven could
be construed as an Eighth Amendment claim, it is repetitive of claim ten and must be
dismissed for the same reasons claim ten will be dismissed.
Claim Twelve
Mr. Faircloth alleges in claim twelve that Defendant A. Hysjulien, a lieutenant at
the Buena Vista Correctional Facility, subjected him to cruel and unusual punishment
and denied him due process by “refusing this petitioner’s right to compulsory witnesses
and an investigation before utilizing [removal from population (RFP)] on October 10,
2012.” (ECF No. 57-1 at 9.) According to Mr. Faircloth, Defendant Hysjulien and
another Defendant, Captain Anderson, conducted an investigation and declined to have
Mr. Faircloth removed from the general population following the law library incident on
November 16 and should have followed the same procedure on October 10.
To the extent Mr. Faircloth is asserting an Eighth Amendment claim against
Defendant Hysjulien, the claim lacks merit for the same reasons Mr. Faircloth’s other
Eighth Amendment claims lack merit. To reiterate, Mr. Faircloth fails to allege facts that
demonstrate he was deprived of the minimal civilized measure of life’s necessities when
he was placed in solitary confinement. See Wilson, 501 U.S. at 298. He also fails to
allege facts that demonstrate Defendant Hysjulien knowingly disregarded a substantial
risk of serious harm. See Farmer, 511 U.S. at 847.
The due process component of claim twelve also lacks merit. The Constitution
guarantees due process when a person is to be deprived of life, liberty, or property.
See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). Mr. Faircloth was not
deprived of life or property as a result of his placement in solitary confinement for
11
approximately two weeks in October 2012 prior to a disciplinary hearing. Therefore, the
due process claim depends upon the existence of a constitutionally protected liberty
interest.
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 segregation relates to
and furthers a legitimate penological interest, whether the conditions are extreme,
whether the conditions increases 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’s approximately two-week placement in solitary confinement
pending a disciplinary hearing in October 2012 did not implicate a liberty interest that
arises under the Constitution because prisoners are not entitled to any particular degree
of liberty. See Meachum v. Fano, 427 U.S. 215, 225 (1976); Templeman, 16 F.3d at
369. In short, the Due Process Clause does not protect every change in the conditions
of confinement that has a substantial adverse impact on the prisoner. See Meachum,
12
427 U.S. at 224.
The Court also finds that Mr. Faircloth fails to demonstrate the existence of a
constitutionally protected liberty interest that arises under state law because he fails to
allege any facts that demonstrate his approximately two-week placement in solitary
confinement in October 2012 pending a disciplinary hearing imposed atypical and
significant hardship in relation to the ordinary incidents of prison life. According to Mr.
Faircloth, being placed in solitary confinement deprived him of “protected liberty
interests to enjoy recreation, attend meals with other prisoners in a congregate setting
engaging with others socially including his other 1st Amendment rights of religion
participation, redress of grievance, etc.” (ECF No. 57-2 at 9.) The Court is not
persuaded that being subjected to these alleged deprivations while in segregation
pending a disciplinary hearing for approximately two weeks resulted in atypical and
significant hardship. See Rezaq v. Nalley, 677 F.3d 1001, 1012 (10th Cir. 2012)
(quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983), overruled on other grounds by
Sandin, 515 U.S. at 479-83, for the proposition “that nondisciplinary administrative
segregation ‘is the sort of confinement that inmates should reasonably anticipate
receiving at some point in their incarceration.’”). Therefore, the Court finds that Mr.
Faircloth was not deprived of a constitutionally protected liberty interest as a result of his
placement in solitary confinement. As a result, the due process component of claim
twelve lacks merit and will be dismissed as legally frivolous.
Claim Thirteen
Mr. Faircloth alleges in claim thirteen that Defendant Hysjulien, “having direct
knowledge of the petitioner being in solitary confinement, as well as, having it within his
13
power to act in the best interest of justice but, refusing to intervene constitutes Mr. A.
Hysjulien acting in deliberate indifference.” (ECF No. 57-1 at 9.) This claim lacks merit
and will be dismissed as legally frivolous because the vague and conclusory allegation
that Defendant Hysjulien acted with deliberate indifference does not demonstrate the
existence of a constitutional violation. To the extent claim eleven could be construed as
an Eighth Amendment claim, it is repetitive of the Eighth Amendment component of
claim twelve and must be dismissed for the same reasons the Eighth Amendment
component of claim twelve will be dismissed.
Claim Fourteen
Mr. Faircloth alleges in claim fourteen that Defendant Anderson subjected him to
cruel and unusual punishment and denied him due process by failing to investigate the
disciplinary charges filed against Mr. Faircloth prior to his removal from the general
population and his placement in solitary confinement pending a disciplinary hearing. Mr.
Faircloth does not specify whether claim fourteen relates to his removal from population
on October 10, his removal from population on November 30, or both. Even assuming
the claim relates to both incidents, the Court finds that the claim lacks merit.
First, the Eighth Amendment component of the claim lacks merit for the same
reasons Mr. Faircloth’s other Eighth Amendment claims lack merit. The due process
component lacks merit for the same reasons discussed above in the context of claim
twelve, Mr. Faircloth’s due process claim against Defendant Hysjulien. Although claim
twelve addressed only the approximately two-week period of solitary confinement that
commenced on October 10, Mr. Faircloth makes no allegations regarding the second
period of solitary confinement that commenced on November 30 that would alter the
14
Court’s conclusion that Mr. Faircloth was not deprived of a constitutionally protected
liberty interest. In particular, the court notes that the second period of pre-hearing
solitary confinement that commenced on November 30 was slightly shorter because Mr.
Faircloth alleges that a disciplinary hearing was held on December 11, 2012. Although
Mr. Faircloth maintains that he remained in segregation until January 7, 2013, the due
process claim he asserts against Defendant Anderson based on his alleged failure to
conduct an investigation prior to Mr. Faircloth being removed from the population does
not implicate his confinement in segregation after he was found guilty at the disciplinary
hearing. Therefore, claim fourteen also is legally frivolous and must be dismissed.
Claim Fifteen
Mr. Faircloth alleges in claim fifteen that Defendant Anderson,
having direct knowledge of the plaintiff/petitioner being
placed in handcuff’s [sic] and having to approve of
defendants’ Celia Schwartz, C/O Tancik and Lt. Shield’s
unmerited decision to RFP the petitioner to solitary
confinement, as well as, having it within his power to act in
the best interest of justice but, refusing to intervene
constitutes Mr. Anderson Captain/Shift Leader acting in
deliberate indifference.
(ECF No. 57-1 at 10.) This claim lacks merit and will be dismissed as legally frivolous
because the vague and conclusory allegation that Defendant Anderson acted with
deliberate indifference does not demonstrate the existence of a constitutional violation.
To the extent claim eleven could be construed as an Eighth Amendment claim, it is
repetitive of the Eighth Amendment component of claim fourteen and must be
dismissed for the same reasons the Eighth Amendment component of claim fourteen
will be dismissed.
15
Claim Sixteen
Mr. Faircloth alleges in claim sixteen that Defendant Tancik, a correctional officer
at the Buena Vista Minimum Center, subjected him to cruel and unusual punishment
and denied him due process by failing to investigate the disciplinary charges filed
against Mr. Faircloth prior to his removal from the general population and his placement
in solitary confinement pending a disciplinary hearing. Mr. Faircloth does not specify
whether claim sixteen relates to his removal from population on October 10, his removal
from population on November 30, or both. Even assuming the claim relates to both
incidents, the Court finds that the claim lacks merit for the same reasons discussed
above in the context of claim fourteen, Mr. Faircloth’s nearly identical claim against
Defendant Anderson.
Claim Seventeen
Mr. Faircloth alleges in claim seventeen that Defendant Shields, a lieutenant at
the Buena Vista Minimum Center, subjected him to cruel and unusual punishment and
denied him due process by failing to investigate the disciplinary charges filed against
Mr. Faircloth prior to his removal from the general population and his placement in
solitary confinement pending a disciplinary hearing. Mr. Faircloth does not specify
whether claim seventeen relates to his removal from population on October 10, his
removal from population on November 30, or both. Even assuming the claim relates to
both incidents, the Court finds that the claim lacks merit for the same reasons discussed
above in the context of claim fourteen, Mr. Faircloth’s nearly identical claim against
Defendant Anderson.
Claim Eighteen
16
Mr. Faircloth alleges in claim eighteen that Defendant Shields,
having direct knowledge of the plaintiff/petitioner being
placed in handcuff’s [sic] and having to approved [sic] of
defendants’ Celia Schwartz, C/O Tancik’s meritless decision
to RFP the petitioner to solitary confinement, as well as,
having it within his power to act in the best interest of justice
but, refusing to intervene constitutes Mr. Anderson [sic]
Captain/Shift Leader acting in deliberate indifference.
(ECF No. 57-1 at 12.) This claim lacks merit and will be dismissed as legally frivolous
because the vague and conclusory allegation that Defendant Shields acted with
deliberate indifference does not demonstrate the existence of a constitutional violation.
To the extent claim eighteen could be construed as an Eighth Amendment claim, it is
repetitive of the Eighth Amendment component of claim seventeen and must be
dismissed for the same reasons the Eighth Amendment component of claim seventeen
will be dismissed.
Claim Nineteen
Mr. Faircloth alleges in claim nineteen that Defendant Gerry Bland, the
disciplinary hearing officer, denied him due process at his disciplinary hearing on
December 11, 2012. The Court will not address the merits of the alleged due process
violations in claim nineteen at this time.
Claim Twenty
Mr. Faircloth alleges in claim twenty that Defendant Tom Clements, the former
Executive Director of the DOC, violated a number of constitutional provisions by
implementing Executive Directive #25-12. According to Mr. Faircloth,
on or about November 20th, 2012, this petitioner researched
and found that a new A.R. Implementation of Executive
Directive #25-12 was put out by TOM CLEMENTS Executive
17
Director of C.D.O.C., that in turn caused a system wide
abrogation of offender(s) rights which is quite apparent and
now seems to give any correctional officer the ability to
abrogate and abuse the probable cause standards of
determination for RFP with and/or for anything less than
imminent and substantial threats as per A.R. 150-01
IV(e)(3)(g) and A.R. 600-01 IV(m).
(ECF No. 57 at 11-12.) Mr. Faircloth apparently contends that this new executive
directive reduced the standard necessary to have an inmate removed from population
and placed in segregation. (See ECF No. 57-2 at 1-3.)
Claim twenty will be dismissed as legally frivolous because Mr. Faircloth fails to
allege specific facts that demonstrate his constitutional rights have been violated in any
way. Merely making vague and conclusory allegations that his federal constitutional
rights have been violated does 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). “[I]n 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. To the extent Mr. Faircloth contends that Executive Directive #25-12 improperly
was used to remove him from the general population and place him in solitary
confinement in violation of his right to due process, the claim is legally frivolous for the
same reasons discussed in the context of Mr. Faircloth’s other due process claims that
the Court has determined are legally frivolous.
Claim Twenty-One
Mr. Faircloth alleges in claim twenty-one that Defendant Murray, a sergeant at
the Buena Vista Correctional Complex, subjected him to cruel and unusual punishment
18
and denied him due process by harassing him and subjecting him to inappropriate and
sexually-abusive pat-down searches on two occasions in November 2012. The Court
will not address the merits of the alleged Eighth Amendment violation in claim twentyone at this time.
Claim Twenty-Two
Mr. Faircloth asserts claim twenty-two against all of the Defendants and he
alleges generally that his constitutional rights have been violated. The Court finds that
claim twenty-two is legally frivolous because the claim is repetitive of Mr. Faircloth’s
other claims in this action.
Claim Twenty-Three
Mr. Faircloth alleges in claim twenty-three that all of the Defendants have
conspired to violate his rights under 42 U.S.C. § 1985. The Court construes claim
twenty-three as being asserted pursuant to § 1985(3).
“The essential elements of a § 1985(3) claim are: (1) a conspiracy; (2) to deprive
plaintiff of equal protection or equal privileges and immunities; (3) an act in furtherance
of the conspiracy; and (4) an injury or deprivation resulting therefrom.” Tilton v.
Richardson, 6 F.3d 683, 686 (10th Cir. 1993). Furthermore, § 1985(3) applies only to
conspiracies motivated by “some racial, or perhaps otherwise class-based, invidiously
discriminatory animus.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). To the extent
a § 1985(3) claim can be based on a non-racially motivated private conspiracy,
it is necessary to plead, inter alia:
1. that the conspiracy is motivated by a class-based
invidiously discriminatory animus; and
19
2. that the conspiracy is aimed at interfering with rights that
by definition are protected against private, as well as official,
encroachment.
Tilton, 6 F.3d at 686.
Mr. Faircloth does not contend that the alleged conspiracy to deprive him of his
rights was racially motivated and he fails to identify any other class-based invidiously
discriminatory animus on which to base his § 1985(3) claim. He also fails to allege any
specific facts to support the existence of the asserted conspiracy. See Benavidez v.
Gunnell, 722 F.2d 615, 618 (10th Cir. 1983) (noting that conclusory allegations of a
conspiracy are not sufficient). Therefore, the Court finds that claim twenty-three is
legally frivolous and must be dismissed.
V. CONCLUSION
For the reasons discussed in this order, the Court will dismiss as legally frivolous
all of Mr. Faircloth’s claims in the revised second amended Prisoner Complaint with the
exception of claims one, nineteen, and twenty-one. Furthermore, the Court will dismiss
as parties to this action all Defendants other than Defendants Celia Schwartz, Gerry
Bland, and Mrs. Murray. Mr. Faircloth’s three remaining claims against the three
remaining Defendants will be drawn to a district judge and to a magistrate judge as
provided in D.C.COLO.LCivR 8.2D because the Court has completed its review
pursuant to D.C.COLO.LCivR 8.2C. Accordingly, it is
ORDERED that claims two through eighteen, twenty, twenty-two, and twentythree in the revised second amended Prisoner Complaint (ECF No. 57) are dismissed
as legally frivolous pursuant to 28 U.S.C. § 1915A(b)(1). It is
20
FURTHER ORDERED that Defendants John Davis, David Cotten, R. Fisher, A.
Hysjulien, Mr. Anderson, Mr. Tancik, Mr. Shields, and Tom Clements are dismissed as
parties to this action. It is
FURTHER ORDERED that this case shall be drawn to a district judge and to a
magistrate judge.
DATED at Denver, Colorado, this 25th day of
March
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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