Faircloth v. Timme et al
Filing
23
ORDER to Dismiss in Part and to Assign Case to a District Judge and to a Magistrate Judge. ORDERED that claims two, four, six, eight, ten, twelve, fourteen, sixteen, eighteen, twenty through twenty-seven, and thirty-one in the revised second amend ed Prisoner Complaint 20 are dismissed. Defendants Case Manger Jurado, Case Manager Holcomb, Dave Tessier, Mr. DeWolffe, Julie Russell, Amy Cosner, Anthony DeCesaro, and Major Lance Micklich are dismissed as parties to this action. This case shall be assigned to Judge Robert E. Blackburn pursuant to D.C.COLO.LCivR 40.1C.1., and to Magistrate Judge Kristen L. Mix, by Judge Lewis T. Babcock on 3/27/13. (sgrim)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-03317-BNB
JAMES FAIRCLOTH,
Plaintiff,
v.
WARDEN RAE TIMME, in her official and individual capacity,
GARY MORGAN, Mental Health Clinician/Designee, in his official and individual
capacity,
BERNES, Chief Mental Health Clinician/Designee, in her official and individual capacity,
GARCIA, Mental Health Clinician/Designee, in her official and individual capacity,
JACQUELINE McCALL, Administrative Head/Designee, in her official and individual
capacity,
CAPTAIN JOSEPH GIGANTI, in his official and individual capacity,
UNKNOWN GRAVEYARD DUTY OFFICER AT F.C.F., in his official and individual
capacity,
UNKNOWN F.C.F. CELLHOUSE 5 CORRECTIONAL OFFICERS, in their official and
individual capacity,
CORRECTIONAL OFFICER MARQUEZ, in his official and individual capacity,
UNKNOWN F.C.F. HEALTH SERVICES ADMINISTRATOR, in their official and
individual capacity,
CASE MANAGER JURADO, in her official and individual capacity,
CASE MANAGER HOLCOMB, in his official and individual capacity,
DAVE TESSIER, C.T.C.F. Health Services Administrator, in his official and individual
capacity,
MR. DeWOLFFE, Drug and Alcohol Programs Counselor/Coordinator, in his official and
individual capacities,
JULIE RUSSELL, A.D.A./AIC Coordinator, in her official and individual capacity,
AMY COSNER, A.D.A./Facility Coordinator, in her official and individual capacity,
ANTHONY DeCESARO, Grievance Officer, in his official and individual capacity,
LT. TOM BENEZE, in his official and individual capacity,
MAJOR LANCE MICKLICH, in his official and individual capacity,
SGT. VIOLA, in his official and individual capacity, mailroom,
CORRECTIONAL OFFICER MILLER, in her official and individual capacity, and
LT. LINDA WORTHEN, in her official and individual capacity,
Defendants.
ORDER TO DISMISS IN PART AND TO ASSIGN 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 Prisoner Complaint (ECF
No. 1). On December 27, 2012, Magistrate Judge Boyd N. Boland ordered Mr. Faircloth
to file an 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 legal
right allegedly violated with respect to each claim. Magistrate Judge Boland also
advised Mr. Faircloth that, for each claim he asserts, he must explain what each
defendant did to him; when the defendant did it; how the defendant’s action harmed
him; 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. 10) that he signed on December 25, 2012, and which apparently crossed in the mail
with Magistrate Judge Boland’s December 27 order. On January 30, 2013, Mr.
Faircloth filed a motion for an extension of time (ECF No. 13) to file an amended
2
complaint that complies with Magistrate Judge Boland’s December 27 order. On March
5, 2013, Mr. Faircloth filed a second amended Prisoner Complaint (ECF No. 16) and on
March 7, 2013, he filed a revised version of the second amended Prisoner Complaint
(ECF No. 20). The Court will address Mr. Faircloth’s claims as they are set forth in the
revised second amended Prisoner Complaint (ECF No. 20).
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
3
below, the Court will dismiss the revised second amended Prisoner Complaint in part as
legally frivolous.
III. FACTUAL BACKGROUND
Mr. Faircloth asserts three distinct series of claims in this action. He first asserts
a series of claims based on his cell placement on January 3, 2011, at the Fremont
Correctional Facility. According to Mr. Faircloth, he was placed in cell 5A-14, which had
a television cable approximately six to eight feet long hanging from the wall, even
though he was on a suicide/mental health watch at the time. Mr. Faircloth alleges that
he attempted suicide a second time that night. He further alleges that on February 29,
2012, he discovered he had been placed in cell 5A-14 on January 3, 2011, to finish the
job of killing himself. (See ECF No. 20 at 14.)
Mr. Faircloth next asserts a series of claims that relate to medical treatment for
Hepatitis C, although the specific claims he is asserting concerning Hepatitis C are not
clear. Mr. Faircloth alleges that he signed a Hepatitis C treatment contract in 2009 and
that he was told to sign another Hepatitis C treatment contract in 2011. He further
alleges that he was placed on the “T.C. Program/Therapeutic Community Program” in
June 2009 and that in May or June 2012 he was informed in response to a grievance
“that medical treatment is not an accommodation.” (ECF No. 20 at 15.)
Mr. Faircloth finally asserts a series of claims that relate to seizure of a document
and mail. According to Mr. Faircloth, “a copy of this Petitioner’s Trust Document #2010155-1173-8” was seized on September 1, 2011, and led to his being labeled as a
member of a security threat group. Mr. Faircloth also alleges that mail to and from
American Bulletin Newsletter was seized on two occasions in December 2011.
4
IV. ANALYSIS
Mr. Faircloth asserts a total of thirty-four claims for relief against twenty-two
defendants.
A. Placement in Cell 5A-14
The first twenty-two claims in the revised second amended Prisoner Complaint
relate to Mr. Faircloth’s placement in cell 5A-14 on January 3, 2011, and his attempted
suicide that night.
Claim One
Mr. Faircloth first claims that Defendant Rae Timme, the Fremont Correctional
Facility warden, subjected him to cruel and unusual punishment in violation of the
Eighth Amendment when he was placed in cell 5A-14 on January 3, 2011. The Court
will not address the merits of claim one at this time.
Claim Two
Mr. Faircloth contends in claim two that Defendant Timme “failed to investigate
complaint of denial of due process and equal protection pursuant to the 14th amendment
upon officials’ duty to State and Federal laws and Constitution(s) and oath(s) of
office/fidelity bond to the same set forth in Administrative Regulations governed by the
Constitutional amendment.” (ECF No. 20 at 19.) Although not entirely clear, Mr.
Faircloth apparently alleges in support of this claim that his constitutional rights were
violated because of a failure to comply with a DOC administrative regulation. If so, the
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). If the Court has misunderstood claim
5
two, the claim still must 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.
Claim Three
Mr. Faircloth alleges in claim three that Defendant Gary Morgan, a mental health
clinician, subjected him to cruel and unusual punishment in violation of the Eighth
Amendment when he was placed in cell 5A-14 on January 3, 2011. The Court will not
address the merits of claim three at this time.
Claim Four
Mr. Faircloth alleges in claim four that Defendant Morgan “failed to investigate
complaint of denial of due process and equal protection pursuant to the 14th amendment
and deliberate indifference upon officials’ duty to State and Federal laws and
Constitution(s) and oath(s) of office/fidelity bond to the same set forth in Administrative
Regulations governed by the Constitutional amendments 8 and 14.” (ECF No. 20 at
20.) This claim will be dismissed as legally frivolous for the same reasons discussed
above in the context of claim two, Mr. Faircloth’s nearly identical claim against
Defendant Timme.
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Claim Five
Mr. Faircloth alleges in claim five that Defendant Bernes, a mental health
clinician, subjected him to cruel and unusual punishment in violation of the Eighth
Amendment when he was placed in cell 5A-14 on January 3, 2011. The Court will not
address the merits of claim five at this time.
Claim Six
Mr. Faircloth alleges in claim six that Defendant Bernes “failed to investigate
complaint of denial of due process and equal protection pursuant to the 14th amendment
upon officials’ duty to State and Federal laws and Constitution(s) and oath(s) of
office/fidelity bond to the same set forth in Administrative Regulations governed by the
Constitutional amendments.” (ECF No. 20 at 21.) This claim will be dismissed as
legally frivolous for the same reasons discussed above in the context of claim two, Mr.
Faircloth’s nearly identical claim against Defendant Timme.
Claim Seven
Mr. Faircloth alleges in claim seven that Defendant Garcia, a mental health
clinician, subjected him to cruel and unusual punishment in violation of the Eighth
Amendment when he was placed in cell 5A-14 on January 3, 2011. The Court will not
address the merits of claim seven at this time.
Claim Eight
Mr. Faircloth alleges in claim eight that Defendant Garcia “failed to investigate
complaint of denial of due process and equal protection pursuant to the 14th amendment
upon officials’ duty to State and Federal laws and Constitution(s) and oath(s) of
office/fidelity bond to the same set forth in Administrative Regulations governed by the
7
Constitutional amendments guiding ACA standards.” (ECF No. 20 at 22.) This claim
will be dismissed as legally frivolous for the same reasons discussed above in the
context of claim two, Mr. Faircloth’s nearly identical claim against Defendant Timme.
Claim Nine
Mr. Faircloth alleges in claim nine that Defendant Jacqueline McCall, an
administrative head, subjected him to cruel and unusual punishment in violation of the
Eighth Amendment when he was placed in cell 5A-14 on January 3, 2011. The Court
will not address the merits of claim nine at this time.
Claim Ten
Mr. Faircloth alleges in claim ten that Defendant McCall “failed to investigate
complaint of denial of due process and equal protection pursuant to the 14th amendment
upon officials’ duty to State and Federal laws and Constitution(s) and oath(s) of
office/fidelity bond to the same set forth in Administrative Regulations governed by the
Constitutional amendments.” (ECF No. 20 at 23.) This claim will be dismissed as
legally frivolous for the same reasons discussed above in the context of claim two, Mr.
Faircloth’s nearly identical claim against Defendant Timme.
Claim Eleven
Mr. Faircloth alleges in claim eleven that Defendant Joseph Giganti, a shift
commander, subjected him to cruel and unusual punishment in violation of the Eighth
Amendment when he was placed in cell 5A-14 on January 3, 2011. The Court will not
address the merits of claim eleven at this time.
Claim Twelve
Mr. Faircloth alleges in claim twelve that Defendant Giganti “failed to investigate
8
complaint of denial of due process and equal protection pursuant to the 14th amendment
upon officials’ duty to State and Federal laws and Constitution(s) and oath(s) of
office/fidelity bond to the same set forth in Administrative Regulations governed by the
Constitutional amendments.” (ECF No. 20 at 24-25.) This claim will be dismissed as
legally frivolous for the same reasons discussed above in the context of claim two, Mr.
Faircloth’s nearly identical claim against Defendant Timme.
Claim Thirteen
Mr. Faircloth alleges in claim thirteen that Defendant Unknown Graveyard Duty
Officer subjected him to cruel and unusual punishment in violation of the Eighth
Amendment when he was placed in cell 5A-14 on January 3, 2011. The Court will not
address the merits of claim thirteen at this time.
Claim Fourteen
Mr. Faircloth alleges in claim fourteen that Defendant Unknown Graveyard Duty
Officer “failed to investigate complaint of denial of due process and equal protection
pursuant to the 14th amendment upon officials’ duty to State and Federal laws and
Constitution(s) and oath(s) of office/fidelity bond to the same set forth in Administrative
Regulations governed by the Constitutional amendments.” (ECF No. 20 at 26.) This
claim will be dismissed as legally frivolous for the same reasons discussed above in the
context of claim two, Mr. Faircloth’s nearly identical claim against Defendant Timme.
Claim Fifteen
Mr. Faircloth alleges in claim fifteen that Defendant Unknown Cellhouse 5
Correctional Officers subjected him to cruel and unusual punishment in violation of the
Eighth Amendment when he was placed in cell 5A-14 on January 3, 2011. The Court
9
will not address the merits of claim fifteen at this time.
Claim Sixteen
Mr. Faircloth alleges in claim sixteen that Defendant Unknown Cellhouse 5
Correctional Officers failed to investigate his complaint “of denial of due process and
equal protection pursuant to the 14th amendment upon officials’ duty to State and
Federal laws and Constitution(s) and oath(s) of office/fidelity bond to the same set forth
in Administrative Regulations governed by the Constitutional amendments.” (ECF No.
20 at 27.) This claim will be dismissed as legally frivolous for the same reasons
discussed above in the context of claim two, Mr. Faircloth’s nearly identical claim
against Defendant Timme.
Claim Seventeen
Mr. Faircloth alleges in claim seventeen that Defendant Marquez, a correctional
officer, subjected him to cruel and unusual punishment in violation of the Eighth
Amendment when he was placed in cell 5A-14 on January 3, 2011. The Court will not
address the merits of claim seventeen at this time.
Claim Eighteen
Mr. Faircloth alleges in claim eighteen that Defendant Marquez failed to
investigate his complaint “of denial of due process and equal protection pursuant to the
14th amendment upon officials’ duty to State and Federal laws and Constitution(s) and
oath(s) of office/fidelity bond to the same set forth in Administrative Regulations
governed by the Constitutional amendments.” (ECF No. 20 at 28.) This claim will be
dismissed as legally frivolous for the same reasons discussed above in the context of
claim two, Mr. Faircloth’s nearly identical claim against Defendant Timme.
10
Claim Nineteen
Mr. Faircloth alleges in claim nineteen that Defendant Unknown F.C.F. Health
Services Administrator subjected him to cruel and unusual punishment in violation of the
Eighth Amendment when he was placed in cell 5A-14 on January 3, 2011. The Court
will not address the merits of claim nineteen at this time.
Claim Twenty
Mr. Faircloth alleges in claim twenty that Defendant Unknown F.C.F. Health
Services Administrator failed to investigate his complaint “of denial of due process and
equal protection pursuant to the 14th amendment upon officials’ duty to State and
Federal laws and Constitution(s) and oath(s) of office/fidelity bond to the same set forth
in Administrative Regulations governed by the Constitutional amendments.” (ECF No.
20 at 30.) This claim will be dismissed as legally frivolous for the same reasons
discussed above in the context of claim two, Mr. Faircloth’s nearly identical claim
against Defendant Timme.
Claim Twenty-One
Mr. Faircloth alleges in claim twenty-one that Defendant Jurado, a case
manager, violated his First Amendment rights and his rights to due process and equal
protection on January 17, 2011, by failing to process a grievance Mr. Faircloth alleges
he filed regarding his placement in cell 5A-14. This claim lacks merit and will be
dismissed as legally frivolous because Mr. Faircloth does not have a constitutional right
to file an administrative grievance. See Bingham v. Thomas, 654 F.3d 1171, 1177 (11th
Cir. 2011) (noting that various circuits have held “an inmate has no constitutionallyprotected liberty interest in access to [a prison grievance] procedure”); see also Boyd v.
11
Werholtz, 443 F. App’x 331 (10th Cir. 2011) (affirming dismissal under § 1915A of
inmate’s claim based on alleged denial of access to prison grievance procedure).
Claim Twenty-Two
Mr. Faircloth alleges in claim twenty-two that Defendant Holcomb, a case
manager, violated his First Amendment rights, along with his rights to due process and
equal protection, in June 2011 by failing to process a set of grievances Mr. Faircloth
alleges he filed regarding his placement in cell 5A-14. This claim lacks also merit and
will be dismissed as legally frivolous because Mr. Faircloth does not have a
constitutional right to file an administrative grievance. See id.
B. Hepatitis-C Treatment
Mr. Faircloth next asserts five claims for relief that relate to medical treatment for
Hepatitis C.
Claim Twenty-Three
Mr. Faircloth alleges in claim twenty-three that Defendant Dave Tessier, a health
services administrator at the Colorado Territorial Correctional Facility (CTCF), subjected
him to cruel and unusual punishment and denied him due process “through deliberate
indifference/denial [of] Hepatitis C treatment.” (ECF No. 20 at 33.) Mr. Faircloth alleges
in support of this claim that “[t]he H.S.A. was put on notice that the petitioner’s Hepatitis
C treatment contract and scheduling was improperly denied by himself and C.D.O.C.
headquarters oversight board for clinical services of C.D.O.C.” (Id.) Mr. Faircloth
apparently believes that he improperly was denied treatment for Hepatitis C because a
federal regulation, 28 C.F.R. § 35.131(b)(1), provides that “[a] public entity shall not
deny health services, or services provided in connection with drug rehabilitation, to an
12
individual on the basis of that individual’s current illegal use of drugs, if the individual is
otherwise entitled to such services.”
Claim twenty-three lacks merit because Mr. Faircloth fails to provide specific
factual allegations that set forth exactly what Defendant Tessier did that violated his
rights or even when the alleged constitutional violations occurred. As noted above,
vague and conclusory allegations that his 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, 775 F. Supp. at 1403. Furthermore, Mr. Faircloth
specifically was advised that, for each claim he asserts in this action, 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, 492 F.3d at 1163. In the absence of specific facts to
support the asserted constitutional violations, claim twenty-three is legally frivolous and
must be dismissed.
Claim Twenty-Four
Mr. Faircloth alleges in claim twenty-four that Defendant DeWolffe, a drug and
alcohol programs counselor at CTCF, subjected him to cruel and unusual punishment
and denied him due process “through deliberate indifference/denial [of] drug & alcohol
treatment and refusal to process T.C. program referral.” (ECF No. 20 at 34.) Mr.
Faircloth alleges in support of this claim that Defendant DeWolffe “was put on notice
that the petitioner’s Hepatitis C treatment contract and scheduling was improperly
denied by H.S.A. and C.D.O.C. headquarters oversight board for clinical services of
C.D.O.C.” (Id.) Furthermore, “Mr. Wolffe [sic] was aware that he could have offered a
13
participation in his class in order for this petitioner to receive some type of drug and
alcohol therapy while awaiting placement into T.C. program and either re-assessment
for therapy level codes and/or immediate placement into T.C. program.” (Id.)
Claim twenty-four also will be dismissed as legally frivolous because Mr. Faircloth
fails to provide specific factual allegations that set forth exactly what Defendant
DeWolffe did that violated his rights or even when the alleged constitutional violations
occurred.
Claim Twenty-Five
Mr. Faircloth alleges in claim twenty-five that Defendant Julie Russell, the DOC
ADA/AIC coordinator, subjected him to cruel and unusual punishment and denied him
due process “through deliberate indifference/denial of Hepatitis C treatment.” (ECF No.
20 at 35.) Mr. Faircloth alleges in support of this claim that Defendant Russell “was put
on notice that the petitioner’s Hepatitis C treatment contract and scheduling was
improperly denied by the H.S.A. and C.D.O.C. headquarters oversight board for clinical
services of C.D.O.C.” (Id.) Mr. Faircloth also alleges that Defendant Russell stated in a
grievance response in May or June 2012 “that medical treatment is not an
accommodation.” (ECF No. 20 at 15.)
Claim twenty-five also will be dismissed as legally frivolous because Mr. Faircloth
fails to provide specific factual allegations that set forth exactly what Defendant Russell
did that violated his rights. To the extent Mr. Faircloth is contending that Defendant
Russell violated his constitutional rights by denying an administrative grievance, the
claim lacks merit because Mr. Faircloth does not have a constitutional right to file an
administrative grievance. See Bingham, 654 F.3d at 1177; see also Boyd, 443 F. App’x
14
at 331.
Claim Twenty-Six
Mr. Faircloth alleges in claim twenty-six that Defendant Amy Cosner, the DOC
ADA coordinator at the Colorado Territorial Correctional Facility, subjected him to cruel
and unusual punishment and denied him due process “through deliberate
indifference/denial of Hepatitis C treatment.” (ECF No. 20 at 35.) Mr. Faircloth alleges
in support of this claim that Defendant Cosner “was put on notice that the petitioner’s
Hepatitis C treatment contract and scheduling was improperly denied by the H.S.A. and
C.D.O.C. headquarters oversight board for clinical services of C.D.O.C., and drug
therapy placement for drug addiction disability re-assessment/screening by Mr.
DeWolffe.” (Id.) Mr. Faircloth also alleges that Defendant Cosner stated in a grievance
response in May or June 2012 “that medical treatment is not an accommodation.” (ECF
No. 20 at 15.)
Claim twenty-six also will be dismissed as legally frivolous because Mr. Faircloth
fails to provide specific factual allegations that set forth exactly what Defendant Cosner
did that violated his rights. To the extent Mr. Faircloth is contending that Defendant
Cosner violated his constitutional rights by denying an administrative grievance, the
claim lacks merit because Mr. Faircloth does not have a constitutional right to file an
administrative grievance. See Bingham, 654 F.3d at 1177; see also Boyd, 443 F. App’x
at 331.
Claim Twenty-Seven
Mr. Faircloth alleges in claim twenty-seven that Defendant Anthony DeCesaro,
the DOC grievance officer, subjected him to cruel and unusual punishment and denied
15
him due process “through deliberate indifference/denial of Hepatitis C treatment.” (ECF
No. 20 at 35.) Mr. Faircloth alleges in support of this claim that Defendant DeCesaro
“was put on notice that the petitioner’s Hepatitis C treatment contract and scheduling
was improperly denied by the H.S.A. and C.D.O.C. headquarters oversight board for
clinical services of C.D.O.C., and drug therapy placement for drug addiction disability
re-assessment/screening by Mr. DeWolffe.” (Id.) It appears that Defendant DeCesaro’s
sole involvement in Mr. Faircloth’s Hepatitis C treatment arises out of Mr. DeCesaro’s
denial of one or more administrative grievances.
Claim twenty-seven will be dismissed as legally frivolous because Mr. Faircloth
does not have a constitutional right to file an administrative grievance. See Bingham,
654 F.3d at 1177; see also Boyd, 443 F. App’x at 331.
C. Seizure of Documents and Mail
Mr. Faircloth finally asserts seven claims relevant to the alleged seizure of a
document and mail in September 2011 and December 2011.
Claim Twenty-Eight
Mr. Faircloth alleges in claim twenty-eight that Defendant Tom Beneze, an
intelligence officer/gang coordinator at CTCF, violated his First Amendment rights by
confiscating or approving the “confiscation of mail to and from a press publisher under
false/fictitious pretenses. The Court will not address the merits of claim twenty-eight at
this time.
Claim Twenty-Nine
Mr. Faircloth alleges in claim twenty-nine that Defendant Beneze violated his
constitutional rights by approving the seizure of a trust document and identifying Mr.
16
Faircloth as a member of a security threat group. The Court will not address the merits
of claim twenty-nine at this time.
Claim Thirty
Mr. Faircloth alleges in claim thirty that Defendant Beneze violated his rights to
substantive and procedural due process by identifying Mr. Faircloth as a member of a
security threat group. The Court will not address the merits of claim thirty at this time.
Claim Thirty-One
Mr. Faircloth alleges in claim thirty-one that Defendant Lance Micklich, a reading
committee supervisor at CTCF, violated his rights when he “failed to correct any of the
mailroom clerks/correctional officers and/or Lt. Tom Beneze concerning their seizing
mail to the ARBTO, Inc./American Bulletin Newsletter, and he joined in the conspiracy
to continue to deny this petitioner’s 1st, 4th, 5th, 6th, 9th, 10th and 14th amendment
unalienable rights.” (ECF No. 20 at 41.)
Claim thirty-one lacks merit because Mr. Faircloth fails to provide specific factual
allegations that set forth exactly what Defendant Micklich did that violated his rights
under each of these various constitutional amendments. As noted above, vague and
conclusory allegations that his 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, 775 F. Supp. at 1403. Furthermore, Mr. Faircloth specifically
was advised that, for each claim he asserts in this action, 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, 492 F.3d at 1163. In the absence of specific facts to support the
17
asserted constitutional violations, claim thirty-one is legally frivolous and must be
dismissed.
Claim Thirty-Two
Mr. Faircloth alleges in claim thirty-two that Defendant Viola, a mailroom
sergeant at CTCF, violated his rights under the First and Fourteenth Amendments when
“he failed to follow procedure for confiscation of reading and/or legal material.” (ECF
No. 20 at 41. Mr. Faircloth further alleges that Defendant Viola “has failed to correct the
illegal seizure of letters seized on December 6th and 8th, 2011[,] and also caused to be
lost, a letter to Colorado Prison law project and would not justify or give proof of his
sending mail back to the prison law project.” (Id.) The Court will not address the merits
of claim thirty-two at this time.
Claim Thirty-Three
Mr. Faircloth alleges in claim thirty-three that Defendant Miller, a mailroom clerk
at CTCF, violated his constitutional rights when “she failed to follow procedure for
confiscation of reading and/or legal material.” (ECF No. 20 at 41.) The Court will not
address the merits of claim thirty-three at this time.
Claim Thirty-Four
Mr. Faircloth alleges in claim thirty-four that Defendant Linda Worthen, a
lieutenant at CTCF, violated his constitutional rights when she illegally seized “a copy of
this Petitioner’s Trust Document #2010-155-1173-8” on September 1, 2011, which led
to his being labeled as a member of a security threat group. The Court will not address
the merits of claim thirty-four at this time.
V. CONCLUSION
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For the reasons discussed in this order, the Court will dismiss as legally frivolous
claims two, four, six, eight, ten, twelve, fourteen, sixteen, eighteen, twenty through
twenty-seven, and thirty-one. Furthermore, because all of the claims against them have
been dismissed, the Court will dismiss as parties to this action the following Defendants:
Case Manger Jurado, Case Manager Holcomb, Dave Tessier, Mr. DeWolffe, Julie
Russell, Amy Cosner, Anthony DeCesaro, and Major Lance Micklich. Mr. Faircloth’s
remaining claims against the 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. Pursuant to D.C.COLO.LCivR
40.1C.1., the case will be assigned to Judge Robert E. Blackburn and to Magistrate
Judge Kristen L. Mix. Accordingly, it is
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ORDERED that claims two, four, six, eight, ten, twelve, fourteen, sixteen,
eighteen, twenty through twenty-seven, and thirty-one in the revised second amended
Prisoner Complaint (ECF No. 20) are dismissed as legally frivolous pursuant to 28
U.S.C. § 1915A(b)(1). It is
FURTHER ORDERED that Defendants Case Manger Jurado, Case Manager
Holcomb, Dave Tessier, Mr. DeWolffe, Julie Russell, Amy Cosner, Anthony DeCesaro,
and Major Lance Micklich are dismissed as parties to this action. It is
FURTHER ORDERED that this case shall be assigned to Judge Robert E.
Blackburn pursuant to D.C.COLO.LCivR 40.1C.1., and to Magistrate Judge Kristen L.
Mix.
DATED at Denver, Colorado, this 27th day of
March
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
20
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