United States District Court, D. Colorado
JAMES ROGER DUNCAN, No. 41762, Plaintiff,
C.O. JEFFREY QUINLIN; MAJOR BILDREAYA; CAPTAIN ZWIRN; and SERGEANT GRAHAM, Defendants.
ORDER TO DISMISS
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, James Roger Duncan, is an inmate currently incarcerated at the Sterling Correctional Facility. Acting pro se, he initiated this action by filing a Prisoner Complaint pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement.
A. Applicable Legal Principles
In the Prison Litigation Reform Act (PLRA), Pub.L. No. 104-134, 110 Stat. 1321 (1996), Congress adopted major changes affecting federal actions brought by prisoners in an effort to curb the increasing number of frivolous and harassing law suits brought by persons in custody. Pertinent to the case at bar is the authority granted to federal courts for sua sponte screening and dismissal of prisoner claims.
Specifically, Congress significantly amended Title 28 of the United States Code, section 1915, which establishes the criteria for allowing an action to proceed in forma pauperis (IFP), i.e., without prepayment of costs. Section 1915(e) (as amended) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
In addition, Congress enacted a new statutory provision at 28 U.S.C. § 1915A, entitled "Screening, " which requires the court to review complaints filed by prisoners seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). If the complaint is "frivolous, malicious, or fails to state a claim upon which relief can be granted, " or "seeks monetary relief from a defendant who is immune from such relief, " the court must dismiss the complaint. 28 U.S.C. § 1915A(b).
Further, the PLRA substantially amended the Civil Rights of Institutionalized Persons Act, 42 U.S.C.A. § 1997e. In this regard, the PLRA amended section 1997e(c) to require the court "on its own motion or on the motion of a party" to dismiss any action brought by a prisoner with respect to prison conditions under 42 U.S.C. § 1983 if the action is "frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief." See 42 U.S.C. § 1997e(c)(1).
Plaintiff is considered a "prisoner" as that term is defined under the PLRA, see 28 U.S.C. §§ 1915(h); 1915A(c), and he has been granted leave to proceed IFP in this action (ECF No. 4). Thus his allegations must be reviewed in accordance with 28 U.S.C. § 1915(e)(2)(B). Moreover, his Complaint concerns prison conditions and Defendants are employees of a governmental entity. Thus, his Complaint must be reviewed under the authority set forth above. See Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) ("Because Mr. Blaurock is a prisoner suing government officials, the court is required by federal statute to screen his First Amended Complaint and to dismiss the complaint or any portion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief.").
In reviewing complaints under these statutory provisions, a viable complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The question to be resolved is: whether, taking the factual allegations of the complaint, which are not contradicted by the exhibits and matters of which judicial notice may be had, and taking all reasonable inferences to be drawn from those uncontradicted factual allegations of the complaint, are the "factual allegations... enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true even if doubtful in fact[.]" Bell Atlantic Corp., 550 U.S. at 555. Moreover, 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). See Conkleton v. Raemisch, Civil No. No. 14-1271, ___ Fed.App'x ___, 2015 WL 794901 (10th Cir. Feb. 26, 2015) (upholding in part District Court's dismissal as frivolous of prisoner civil rights complaint); Ross v. Romero, 191 Fed.App'x 682 (10th Cir. 2006) (affirming district court's sua sponte dismissal of prisoner's civil rights complaint under 28 U.S.C. § 1915(b).
The Court must construe the 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). If a complaint reasonably can be read "to state a valid claim on which the plaintiff could prevail, [a court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall, 935 F.2d at 1110. However, a court should not act as a pro se litigant's advocate. See id. Sua sponte dismissal is proper when it is patently obvious that plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile. Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (internal quotations omitted).
B. Plaintiff's Factual Allegations
Plaintiff's alleges that on or around November 7, 2013, he had reported Defendant Officer Quinlin to a yard Sargent for touching him inappropriately in a pat down search. He claims that Defendant Quinlin came into the medical department later that day to "heart" him for ratting on him. He wrote an informal grievance on the matter that night. Shift Commander Captain Zwirn answered that grievance on or around November 12, 2013 and told Plaintiff that he was crazy and that officer Quinlin was not out to get him. On or around November 15, 2013 Officer Quinlin conducted a pat search of Plaintiff, who again accused Quinlin of touching him inappropriately. When Plaintiff asked Quinlin "do you just like touching me?" Quinlin ordered him to "shut up." As Plaintiff walked away, he stated to Quinlin that "this was harassment!" and Quinlin ordered him to cuff up. Plaintiff alleges that Quinlin pinched his upper arm when he escorted Plaintiff to the North Slider. At the north slider, Sargent Graham took his other arm and helped escort him from the slider to the officer conference room. Plaintiff claims that Sargent Graham saw Quinlin pinching his arm but did not do anything to stop him. On the way to the hole, Sargent Graham refused to listen to him about the "assault." An anatomical exam done on that date indicates one dark purple bruise that "appears to be old." (ECF No. 1, 16). No other injuries are noted.
Plaintiff asserts several causes of action in the present action pursuant to the Civil Rights Act, 42 U.S.C. § 1983. For the reasons stated below, the Complaint and the action will be dismissed pursuant to screening authority set forth above. The pertinent grounds which will result ...