United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Henry Lee Griffin, Jr., is a prisoner in the custody of the Colorado Department of Corrections (DOC) who currently is incarcerated at the correctional facility in Buena Vista, Colorado. He filed pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983 for money damages and injunctive relief.
The Court must construe Mr. Griffin's complaint liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Mr. Griffin has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Pursuant to § 1915(e)(2)(B)(i), the Court must dismiss the action if Mr. Griffin's claims are frivolous or malicious. 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, 327-28 (1989). For the reasons stated below, the Prisoner Complaint and the action will be dismissed as legally frivolous.
As justification for filing the instant action, Mr. Griffin cites a sentence in an order entered on December 17, 2009 (ECF No. 5), in Floyd v. Ortiz, No. 81-cv-01754-JLK (D. Colo. Feb. 5, 1982), in which the Honorable John L. Kane stated "[I]nmates who believe their canteen accounts have been unconstitutionally mishandled or misappropriated may commence new actions under 42 U.S.C. § 1983." ECF No. 5 in No. 81-cv-01754-JLK at 3.
Mr. Griffin asserts four claims, the first three of which are based upon what he refers to as the "Colorado Canteen Trust Fund" pursuant to Colo. Rev. Stat. § 17-24-126, which provides:
(1) There is hereby created in the state treasury a special revolving enterprise account to be known as the canteen, vending machine, and library account. The account shall be used by the division [of correctional industries] to establish and operate a canteen for the use and benefit of the inmates of state correctional facilities and to operate vending machines for the use of visitors to state correctional facilities. The moneys in the account shall be continuously available to the division and are appropriated for the purposes set forth in subsection (3) of this section.
(2) The canteen and vending machines shall be managed by the division, and they shall not be operated in any manner for the personal profit of any employees of the division or any inmates of state correctional facilities.
(3) Items in the canteen shall be sold to inmates, and items in vending machines shall be sold to visitors, at prices set so that revenues from the sale are sufficient to fund all expenses of the canteen and vending machines, including the cost of services of employees of the canteen and the cost of servicing the vending machines, and to produce a reasonable profit. All revenues derived from the canteen and vending machines and interest derived from the deposit and investment of moneys in the canteen, vending machine, and library account shall be credited to such account. Any profits arising from the operation of the canteen and vending machines shall be expended for the educational, recreational, and social benefit of the inmates and to supplement direct inmate needs.
Colo. Rev. Stat. § 17-24-126.
As his first claim, Mr. Griffin contends that Steve Smith, director of the Colorado Correctional Industries, is violating his fiduciary duties by misappropriating assets and profits from the Colorado canteen, vending machine, and library account (the Account). He specifically claims Mr. Smith is depriving him of his protected liberty and property interests under the Due Process Clause in the Account assets by withdrawing funds to enter into a five-year contract with Corrections Cable TV Corp. to purchase hundreds of digital LED televisions he is selling to prisoners through the Colorado Correctional Industries canteen at a profit and without remote controls and their batteries, which Plaintiff contends were illegally removed and are being sold to prisoners separately and at a profit. He also contends Mr. Smith's actions have harmed him and other unspecified similarly situated inmates by investing in television channels they do not want. He further contends Mr. Smith committed fraud by charging him and similarly situated Account beneficiaries for the same property both through the initial bulk purchase and through individual sales, and by providing them with television channels they do not want. He seeks to freeze assets in the Account.
As his second claim, Mr Griffin alleges that, as a beneficiary of the Account, his due process rights are being violated by the five-year contract entered into between Colorado Correctional Industries and Corrections Cable TV Corp.
As his third claim, Mr. Griffin alleges that Steve Smith is violating his due process rights by depriving him of the Assets to enter into the five-year contract.
As his fourth claim, he alleges that Rick Raemisch, DOC executive director, has violated his equal protection rights by treating him and all prisoners in the Buena Vista Correctional Facility's Incentive Unit Program differently than similarly situated prisoners in other incentive unit programs. Examples of the alleged different treatment include, but are not limited to, ...