United States District Court, D. Colorado
RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1) and (6) (Docket No. 17)
MICHAEL J. WATANABE, Magistrate Judge.
This case was referred to the undersigned pursuant to the Order Referring Case issued by Judge William J. Martinez on October 18, 2013. (Docket No. 13).
The pro se incarcerated plaintiff, Joseph Vigil, alleges the following in his Second Amended Prisoner Complaint (Docket No. 10), which is brought pursuant to 42 U.S.C. § 1983. Plaintiff is of Native American bloodline (Dakota, Arapahoe). Staff of the Colorado Department of Corrections ("CDOC") have discriminated against him based on race (Claim One), have defamed him (Claim Two), have caused him mental anguish (Claim Three), and have violated his right to freedom of expression and freedom of religion (Claim Four and Nature of the Case) by not permitting him to wear a Mohawk haircut "that fits into [his] cultural beliefs." (Docket No. 10 at 4).
Defendant Daryl Profitt denied plaintiff's request to have a Mohawk haircut due to CDOC policy that states that haircuts shall not be associated with any "disruptive group affiliation." Defendant Raemisch enforced the statewide policy that violates plaintiff's constitutional rights. CDOC staff does not tell "Rastafarian people" and "Jewish people" how to cut their hair. "Jewish people" wear "locks" and "Rastafarian people" have dread locks to practice their religion. Those two religious groups can freely express their culture and religion with no issues. However, racial discrimination is openly practiced in CDOC facilities. There are gang members who are known to shave their heads bald to represent gang ties, but CDOC staff never tell them anything, as far as plaintiff has seen.
On an administrative grievance plaintiff wrote that "a mohawk is a way of life." (Docket No. 10 at 4). Plaintiff "tried to explain that it's a [sic] everyday type of thing, not just at certain times. No other cultural groups' [sic] get this type of discrimination by CDOC staff administration." "CDOC openly intentionally practices very openly racial discrimination towards Native American people for no legit [sic] reason."
Plaintiff also raises a claim of defamation of character because defendant
Profitt claims that aan A.R. 800-01J form is for "amending faith group" practices; my "way of life" to have a mohawk is a tradition of my tribal customs' [sic] since the beginning of time. Faith citizens' programs claims that the traditional way for Native Americans to have a hair style is just "long hair" that is very wrong (Faith citizens) programs is very ignorant of tribal ways customs not all Native American Tribes' [sic] wear the same hair style thats' [sic], "long hair'!
To say that CDOC allows, the "traditional", Native American hairstyle "long hair", thats' [sic] "stereo typing", "judging" "bias, " "categorizing" to label all the Native American hair styles' [sic] "long hair, " traditional. There are tribal traditions that have different hair styles. The statewide CDOC policy that gets enforced by Executive director, violates my U.S. constitutional rights because none of the tribal customs get recognized or acknowledged by a "policy" that puts Native American in one "category, " also the policies aren't enforcing the "disruptive group affiliation" rules on other cultures. Simply, Native Americans are treated unfair by CDOC policies, staff that contribute to enforce the "policies".
On AR form 800-01J that I filled out on 4-24-13' I requested to have a mohawk haircut the response from Daryl Profitt claims that CDOC has been charged w/maintaining all incarcerated offenders that, "allow for the safety of the general public, " that is a type of "mockery" "belittle" this is no shape or form a "general public" it is a justification or excuse to devalue (my claims) or manipulate a system to go against by "freedom of expression"
(Docket No. 10 at 6).
In his third claim, plaintiff alleges "mental anguish." (Docket No. 10 at 6). The statewide policy in AR 1A850-11 does not allow him to "practice' [his] way of life' by [him] not having a mohawk haircut this, is a tribal custom tradition of my people." (Docket No. 10 at 6). At one point, there was a correctional officer who had a Mohawk style type of haircut, which shows there are "double standards" that "acts in a way in a [sic] unequal' matter towards native American people statewide'." "CDOC staff should be held accountable also to have proper dress hygiene', neat clean." also not to be associated w/any disruptive group affiliation.'" (Docket No. 10 at 6).
In Claim Four, plaintiff raises a claim of "Freedom of Expression." The Faith Citizens Programs claim there is no compelling religious reason for Native Americans to be permitted to have a Mohawk haircut, but there was no reason or proof that Profitt has that was presented to plaintiff to disprove Native Americans do not have a Mohawk haircut. That violates plaintiff's freedom of expression. The response to plaintiff's grievance said "shall be neat and clean' it doesn't specifically say what cultural or religious group that can have a (neat and clean), ...