United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Joshua L. Chasteen, was detained in the Mesa County Detention Facility in Grand Junction, Colorado, at the time he initiated this action. He has filed, pro se, an Amended Prisoner Complaint, pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983, asserting deprivations of his constitutional rights. (ECF No. 8). Mr. Chasteen has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On September 16, 2014, Magistrate Judge Boyd N. Boland reviewed the Amended Complaint and determined that it was deficient for several enumerated reasons. Magistrate Judge Boland directed Mr. Chasteen to file a Second Amended Complaint within thirty (30) days of the September 16 Order. Plaintiff was advised that failure to comply would result in the dismissal of some or all of this action without further notice. Mr. Chasteen did not file a Second Amended Complaint by the court-ordered deadline. Accordingly, the Court reviews the sufficiency of the Amended Complaint (ECF No. 8) to determine if summary dismissal is warranted. See D.C.COLO.LCivR 8.1(b) and (c).
Mr. Chasteen has been granted leave to proceed pursuant to the federal in forma pauperis statute, 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks monetary relief against a defendant who is immune from such relief. 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. Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The Court must construe the Amended Complaint liberally because Mr. Chasteen is not represented by counsel. 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. For the reasons discussed below, the Amended Complaint and this action will be dismissed.
The named Defendants in this action are employees of the Mesa County Criminal Justice Services Department (CJSD), Community Corrections, in Grand Junction. Plaintiff makes the following allegations in the Amended Complaint: (1) "the corporation" has denied him approximately $600.00, to which he is entitled (ECF No. 8, at 4); (2) Defendant Black threatened to physically assault him ( id. ); (3) Defendants Black and Dickenson "would look under the stalls in the restroom while [he] was using the restroom" ( id. ); (4) the "Community Corrections Program" refused to allow his mother to come and collect his personal property ( id. ); (5) Defendant Bristol, his case manager, failed to assign him a program matrix so that he could advance in the community corrections program and also failed to set up necessary counseling sessions for the Plaintiff, which resulted in Plaintiff's regression to jail ( id. at 5); (6) "staff" have refused to provide him with grievance forms, in violation of his Fourteenth Amendment due process rights ( id. at 6); (7) Defendant Merryman denied him medical care for his shoulder and threatened to punish him if he exercised his First Amendment free speech rights ( id. at 8). Plaintiff further asserts an unspecified violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101, et seq. ( Id. at 9). Mr. Chasteen requests monetary relief.
I. Applicability of Heck
Mr. Chasteen's claim for damages for an alleged denial of due process in his regression from community corrections to jail is barred by the rule of Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that if a judgment for damages favorable to a prisoner in a 42 U.S.C. § 1983 action necessarily would imply the invalidity of his criminal conviction or sentence, the § 1983 action does not arise until the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by an authorized state tribunal, or called into question by the issuance of a federal habeas writ. See Heck, 512 U.S. at 486-87. The rule in Heck also applies to "proceedings that call into question the fact or duration of parole or probation." Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir.1996) (per curiam). A prisoner's claim challenging his regression from community corrections to jail is analogous to a claim challenging the revocation of parole or probation. Mr. Chasteen does not allege that his removal from community corrections has been invalidated. Accordingly, any claim for damages based on a wrongful regression is barred by Heck.
II. § 1983 Claims Against Defendants in their Official Capacities
The Court liberally construes Plaintiff's allegations against "the corporation" and the "Community Corrections Program" as referring to the Mesa County CJSD, an entity of Mesa County, Colorado. Although Plaintiff has not named Mesa County as a Defendant, any official capacity claims that he asserts against the individual Defendants, who are employees of Mesa County, are construed as claims against Mesa County. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (stating that claims asserted against government officials in their official capacities are construed against the governmental entity).
Mr. Chasteen was warned by Magistrate Judge Boland in the September 16 Order that to hold a county liable under 42 U.S.C. § 1983, he must allege facts to show that an unconstitutional policy or custom exists and that there is a direct causal link between the policy or custom and the injury alleged. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Myers v. Oklahoma County Bd. of County Comm'rs, 151 F.3d 1313, 1316-20 (10th Cir. 1998). Counties are not liable under 42 U.S.C. § 1983 solely because their employees inflict injury on a plaintiff. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). Plaintiff cannot state a claim for relief under § 1983 merely by pointing to isolated incidents. See Monell, 436 U.S. at 694.
Mr. Chasteen does not allege specific facts to show a causal connection between a custom or policy of Mesa County and the alleged constitutional deprivations.
Furthermore, his allegations that Mesa County has denied him approximately $600.00, to which he is entitled (ECF No. 8, at 4), and that the County refused to allow his mother to come and collect his personal property, fail to state an arguable constitutional deprivation. A pro se litigant's vague and conclusory allegations that his federal constitutional rights have been violated does not entitle him or her 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.
Mr. Chasteen's claim that $600 was withheld from him is conclusory and does not include any specific facts to show that he had a constitutionally-protected property interest in the money. Further, his deprivation of property claim fails because Plaintiff has not alleged that the prison's grievance procedure or state court claims are ...