United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND TO DRAW IN PART
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Feliberto Sanchez, is in the custody of the Colorado Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. He initiated this action by filing pro se a Prisoner Complaint alleging a deprivation of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff also has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On August 28, 2014, Magistrate Judge Boyd N. Boland directed Plaintiff to amend the Complaint and comply with Rule 8 and the joinder requirements of the Federal Rules of Civil Procedure. Specifically, Plaintiff was directed to state how each named defendant personally participated in the alleged violation. Plaintiff also was informed that supervisors are not responsible for their subordinates' actions and no claim can be made against a prison official or administrator on the basis that they denied Plaintiff's grievance. Plaintiff filed an Amended Complaint on September 24, 2014.
The Court construes the Amended Complaint liberally because Plaintiff is a pro se litigant. 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 act as a pro se litigant's advocate. See Hall, 935 F.2d at 1110. The Court will dismiss this action in part, for the reasons stated below.
In the Amended Complaint, Plaintiff asserts four claims. First, in the Nature of the Case section of the Amended Complaint, Plaintiff asserts that he has a severe disability because he cannot read or write. Plaintiff further alleges that because of this disability he is not able to participate in the "T.C. program" and that Defendants David Booth and Tammarie D. Ballard, who are instructors in the program, have requested that Plaintiff be placed on Restricted Privileges (RP) for nonparticipation. Am. Compl., ECF No. 8, at 3. Plaintiff contends that he is being discriminated against due to his disability and has no legal recourse. Plaintiff does not state how his rights were violated; he asserts only that he is being discriminated against because he is unable to read and write.
Second, Plaintiff asserts that Defendant Werth used excessive force against him when he placed Plaintiff in handcuffs and tried to pick Plaintiff up by his thumbs in an effort to break Plaintiff's thumbs. Plaintiff also asserts that during the time Defendant Werth had Plaintiff in handcuffs there was a disruption taking place in the kitchen, but Plaintiff denies being part of the disruption.
Third, Plaintiff appears to challenge a state court proceeding during which it was determined Plaintiff should pay $45 for the "total cost for the D.O.C. officers [sic] time." Plaintiff's claims regarding the state court proceeding are convoluted and difficult to understand. The Court, however, has determined the following. A few days prior to Plaintiff's appearance date in state court regarding his ADA lawsuit he was transferred to another facility so that he was unable to testify regarding his disabilities and to obtain the help that he needs. Plaintiff further asserts that more than $45 has been taken from his account, apparently for the costs the DOC incurred for an officer's time. Plaintiff does not state why he was responsible for paying the cost of an officer's time, but he asserts that taking the money is theft under Colo. Rev. Stat. § 18-4-401.
Finally, Plaintiff asserts that he is in fear of physical retaliation and further reclassification based on his inability to read and write and for suing DOC staff. Plaintiff seeks money damages.
The excessive force claim will be ordered drawn to a presiding judge and, if appropriate, to a magistrate judge.
The discrimination claim is construed as an equal protection claim and will be dismissed. The Equal Protection Clause of the Fourteenth Amendment provides that "[n]o state shall... deny to any person within its jurisdiction the equal protection of the laws, " U.S. Const. amend. XIV, § 1. When considering an 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). The basic premise of the Equal Protection Clause is that all similarly situated persons should be treated alike by state actors. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). To prevail on an equal protection claim, a plaintiff must show that the government has treated him differently than others who were similarly situated. See Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996).
Plaintiff does not assert a fundamental right or differential treatment based on a suspect classification. Disability is not a suspect classification for equal protection purposes, see Whitington v. Moschetti, 42 F.Appx. 767, 770 (10th Cir 2011), and the Supreme Court has held that education "is not among the rights afforded explicit protection under our Federal Constitution. Nor.... [is there] any basis for saying it is implicitly so protected." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). Plaintiff, therefore, must assert that defendants have treated him differently than others who are similarly situated and that the distinction was not reasonably related to some legitimate penological purpose. See Gwinn v. Awmiller, 354 F.3d 1211, 1228 (10th Cir. 2004) ("absent an allegation of a suspect classification, our review of prison officials' differing treatment of various inmates is quite deferential" and only whether the treatment was "reasonably related to a legitimate penological purpose" is considered).
The requirement to show that an inmate is similarly situated is demanding. See Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994) ("[I]t is "clearly baseless' to claim that there are other inmates who are similar in every relevant respect.") (citing Neitzke v. Williams, 490 U.S. 319, 327 (1989)). Furthermore, because inmate classification is discretionary it is not plausible that inmates are similar in every relevant respect for the purpose of equal protection claims. See Fogle v. Pierson, 435 F.3d 1252, 1261 (10th Cir. 2006). "Absent a threshold showing that [Plaintiff] is similarly situated to those who allegedly receive favorable treatment, [he] does not have a viable equal protection claim." Klinger v. Dep't of Corr., 31 F.3d 727, 731 (8th Cir. 1994). Based on his disability, Plaintiff fails to make a threshold showing that he is similarly situated to the inmates who are allowed to participate in the T.C. program.
Even if the inmates participating in the T.C. program are similarly situated to inmates who either have elected not to participate or were denied the opportunity to do so, Plaintiff is required to assert that his treatment was not reasonably related to some legitimate penological purpose. Prison officials have considerable discretion in placement decisions, and Plaintiff is unable to assert that his denial of or removal from the T.C. Program and possible reclassification to RP status was unreasonable. See Hornsby v. Jones, 188 F.Appx. 684, 690 (10th Cir. 2006) (citing Fogle, 435 F.3d at 1261). There is a presumption in favor of the validity of prison officials' disparate treatment. See Hill v. Pugh, 75 F.Appx. 715, 720 (10th Cir. 2003).
Plaintiff's discrimination claim is conclusory and does not support a plausible claim for relief based on a denial of Plaintiff's equal protection rights. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The equal ...