United States District Court, D. Colorado
NEWTON J. CANTRELL, Plaintiff,
T.K. COZZA RHODES, Warden, D. MCELVOY, N-A Unit Manager, Defendants
Newton J. Cantrell, Plaintiff, Pro se, FLORENCE, CO.
ORDER TO DISMISS IN PART AND TO DRAW CASE
LEWIS T. BABCOCK, Senior United States District Judge.
Plaintiff, Newton J. Cantrell, is in the custody of the federal Bureau of Prisons (BOP) and is incarcerated at the Correctional Institution in Florence, Colorado. He has filed pro se a Complaint pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
On October 15, 2014, Magistrate Judge Boyd N. Boland reviewed the Complaint and determined that it was deficient for several enumerated reasons. Magistrate Judge Boland directed Mr. Cantrell to file an Amended Complaint within thirty (30) days of the October 15 Order. Plaintiff was advised that failure to comply would result in the dismissal of some or all of this action without further notice. Mr. Cantrell did not file an Amended Complaint by the court-ordered deadline. Accordingly, the Court reviews the sufficiency of the Complaint to determine if summary dismissal is warranted. See D.C.COLO.LCivR 8.1(b) and (c).
Mr. Cantrell has been granted leave to proceed in forma pauperis, pursuant to 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, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
The Court must construe the Complaint liberally because Mr. Cantrell is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons discussed below, the Complaint will be dismissed in substantial part, and the remainder will be drawn to a presiding judge and, if appropriate, to a magistrate judge.
I. The Complaint
Mr. Cantrell alleges in the Complaint that in late 2013, and in February 2014, Defendant McElvoy, his unit manager, refused to allow him to correspond with the woman whom Plaintiff considered his " wife." (ECF No. 1, at 3). Plaintiff further alleges that the BOP " approved" his correspondence with his " wife" for ten years before she was diagnosed with cancer and transferred from FCI-Dublin, California, to Federal Medical Center Carswell, in Fort Worth, Texas. (Id. at 10, 14). According to Mr. Cantrell, the Defendants denied his requests for continued correspondence because there was no official marriage certificate in his prison file and BOP policy does not recognize a traditional Native American marriage.
Plaintiff asserts in the Complaint that a Native American marriage
is considered to be the equivalent of a . . . common law marriage that is formed without a certificate of marriage or solemnization. My wife and I both being from the State of Montana, our marriage is covered by Montana State law MCA 40-1-403 which recognizes common law marriages in our home State of Montana.
(Id. at 4). Mr. Cantrell states that his " wife" died from cancer on March 8, 2014, without any contact from him for several months. (Id.). He alleges that he " told both McElvoy and the Warden Rhodes at least 3 times over a six month period that Indian marriages do not require a certificate of marriage, " but his " wife died while we were waiting for these women to decide if we will be allowed to communicate with each other or not." (Id. at 4). Mr. Cantrell claims that the Defendants' refusal to recognize his Native American traditional marriage violated the 1868 Fort Laramie Treaty, 15 Stat. 635, and the American Indian Religious Freedom Act (" AIRFA"), 42 U.S.C. § 1996.
Mr. Cantrell also alleges in the Complaint that for approximately seven years, eye doctors at the prison informed him that his loss of vision was due to cataracts, but an August 2014 examination outside the prison revealed that the vision impairment was due to a broken blood vessel. Plaintiff asserts that he may have ...