United States District Court, D. Colorado
PHILIP E. STETZEL, Plaintiff,
RANDY LIND, RON WAGER, YVETTE BROWN, TIFFANI HOLUBEK, RICK LAWSON, WILLIAM GOMEZ, STEPHANIE GONZALES, and HARRISON WELTON, Defendants.
ORDER TO DISMISS IN PART AND TO DRAW CASE
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Philip E. Stetzel, 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. Mr. Stetzel initiated this action by filing pro se a Prisoner Complaint asserting a deprivation of his constitutional rights pursuant to 28 U.S.C. § 1343, 42 U.S.C. § 1983, and other statutes. He asks for money damages and declaratory and injunctive relief.
On July 29, 2014, Magistrate Judge Craig B. Shaffer reviewed the Prisoner Complaint and determined it was deficient because Mr. Stetzel failed to comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and failed to allege the personal participation of each Defendant in a deprivation of his constitutional rights. Magistrate Judge Shaffer directed Plaintiff to file an amended complaint within thirty days of the July 29 order (ECF No. 5). On September 2, 2014, Mr. Stetzel filed an amended Prisoner Complaint (ECF No. 7).
On September 22, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 8) directing Mr. Stetzel to file a second and final amended Prisoner Complaint that complied with Fed.R.Civ.P. 8 and alleged each Defendant's personal participation in the asserted claims. On October 23, 2014, Mr. Stetzel filed a second and final amended Prisoner Complaint (ECF No. 9) pursuant to 42 U.S.C. § 1983, as well as pursuant to repealed statute 28 U.S.C. § 2282, 28 U.S.C. § 2283 concerning stay of state court proceedings, and 28 U.S.C. §§ 2201-2202 concerning declaratory judgments. On November 3, 2014, he supplemented the second and final amended Prisoner Complaint with an addendum (ECF No. 10) in which he asks to add an attachment to those previously submitted with the first amended Prisoner Complaint, and to supplement his first asserted claim of retaliation and add Randy Malden, his Arkansas Valley Correctional Facility case manager, as a Defendant. The request will be granted.
Mr. Stetzel has been granted leave to proceed pursuant to the in forma pauperis statute, 28 U.S.C. § 1915. Pursuant to § 1915(e)(2)(B)(i), the Court must dismiss the action if Mr. Stetzel'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).
The Court must construe the second and final amended Prisoner Complaint liberally because Mr. Stetzel 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 act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss this action in part as legally frivolous and draw the remainder of the case to a presiding judge and, if appropriate, to a magistrate judge.
I. Analysis of Claims
A. First Claim for Relief (Retaliation)
Mr. Stetzel alleges that Defendant, Tiffani Holubek, a law librarian at the Arkansas Valley Correctional Facility, filed notices of charges against him, citing him on December 17, 2013, with disciplinary violations for Disobeying a Lawful Order and on April 18, 2014, with a disciplinary violation for Threats. Mr. Stetzel contends Ms. Holubek fabricated the incidents in retaliation for his filing grievances against her.
He alleges that he was found not guilty of Disobeying a Lawful Order, but found guilty of Threats at a hearing conducted on May 1, 2014, by hearing officer, Defendant William Gomez, was sanctioned by twenty days in punitive segregation, and his conviction upheld on appeal by Defendant, Stephanie Gonzales. Mr. Stetzel further alleges he wrote letters to Defendants, Harrison Welton, DOC investigator general, and Jay Kirby, interim inspector general of the DOC Office of Investigator General, about the incidents that gave rise to the disciplinary charges ( see ECF No. 7 at 48-53, 55-58 (exs. E and F)), and received a written response from Mr. Kirby ( see ECF No. 7 at 54 (ex. A attached to ex. E)). Mr. Stetzel complains that because of the wrongful conviction he was transferred from the Arkansas Valley Correctional Facility to the Buena Vista Correctional Facility. He alleges in the supplement (ECF No. 10) to the Prisoner Complaint that the reclassification document recommending his transfer was generated on April 29, 2014, two days prior to his May 1, 2014, hearing by Mr. Malden.
Prison officials may not retaliate against an inmate for exercising his constitutional rights. See Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). To state a retaliation claim Mr. Stetzel must demonstrate that: (1) he was engaged in constitutionally protected activity, (2) Defendant's actions caused him to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) Defendant's adverse action was substantially motivated as a response to Plaintiff's constitutionally protected activity. See Allen v. Avance, 491 F.Appx. 1, 6 (10th Cir. 2012). Under the third prong, Mr. Stetzel must demonstrate that the "alleged retaliatory motives were the but for' cause of the defendants' actions." Peterson, 149 F.3d at 1144. "Mere allegations of constitutional retaliation will not suffice; plaintiffs must rather allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1991).
Mr. Stetzel fails to allege facts clearly indicating the personal involvement of Mr. Gomez, Ms. Gonzales, Mr. Welton, Mr. Kirby, and Mr. Malden in any acts of retaliation. In both the order for an amended Prisoner Complaint (ECF No. 5) and the order for a second and final amended Prisoner Complaint (ECF No. 8), the Court explained to Mr. Stetzel that in order to state a claim in federal court, he "must explain what each defendant did to him or her; when the defendant did it; how the defendant's action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). He has failed to do so as to his claim of retaliation with respect to Mr. Gomez, Ms. Gonzales, Mr. Welton, Mr. Kirby, and Mr. Malden.
Therefore, the claims against Mr. Gomez, Ms. Gonzales, Mr. Welton, Mr. Kirby, and Mr. Malden will be dismissed, and they will be dismissed as parties to this action. Only the retaliation claim asserted against Ms. Holubek will be drawn ...