United States District Court, D. Colorado
RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS (Docket No. 25)
MICHAEL J. WATANABE, Magistrate Judge.
This case was referred to this court pursuant to an Order Referring Case entered by Judge Christine M. Arguello on November 24, 2014 (Docket No. 11).
This action is brought pursuant to 42 U.S.C. § 1983 by pro se incarcerated plaintiff Keith Frazier. Following an Order issued by Senior Judge Lewis T. Babcock (Docket No. 9), only one of the original six defendants remains, and all claims but plaintiff's First Amendment retaliation claim were dismissed as legally frivolous. In his rambling Amended Complaint (Docket No. 6), plaintiff seeks monetary damages and alleges the following in his retaliation claim against defendant P. Flores, the 2 Unit Manager at Crowley County Correctional Facility ("CCCF").
On September 22, 2013, plaintiff's cell at CCCF was searched. Just eleven days later, on October 3, it was searched again by officers Infante, Janssen, and Romera. After the latter search, plaintiff noticed that a large bag containing his personal property was being carried away by the officers, but the "Shakedown List" they had left behind made only vague references to a small handful of the things that had been taken. Consequently, plaintiff immediately requested that defendant Flores come to plaintiff's cell to see plaintiff about the situation. About ten minutes later, Flores arrived, and plaintiff mentioned to him that he wanted an opportunity to challenge/contest the seizure of his property. Plaintiff had previously brought a civil action in this court, Civil Action No. 13-cv-00891-LTB, against Flores and others for almost an identical occurrence on June 14, 2011. Already annoyed at having been summoned by plaintiff to deal with yet another personal property search/confiscation issue and in a very foul mood for that reason, Flores demanded that plaintiff describe with particularity all of the items plaintiff felt were missing and show proof ownership right then and there. Since the officers had trashed plaintiff's living area, plaintiff responded that this would be impossible for him to do on such short notice. To speed up this process, plaintiff asked Flores to be allowed to see what was in the bag of items taken from him, but this request was tersely denied. Plaintiff reminded Flores that per the Administrative Regulations ("ARs"), part of which plaintiff read to Flores, plaintiff had a right to know what was seized from him, and plaintiff requested that Flores re-do the Shakedown List so as to delineate all of the things that had been taken from him. That request was denied in an almost mocking manner. Plaintiff was able to name only a couple of missing items at that time and did not have proof of ownership right there, so Flores declared that he had given plaintiff the chance to re-claim his property, that he had failed to do so, and that Flores could now discard it. As Flores began to leave, plaintiff stopped him once more to request that he at least be given the requisite ten days to arrange to have his property sent home or released to a friend or family member in accordance with the ARs, which plaintiff quoted to Flores. Flores made a joke of plaintiff's explanation of the rules, abruptly refused plaintiff's request, and left.
The following items were missing from plaintiff's cell: a hat, cup/plant, guitar pick, double-barrel pencil sharpener, numerous shoelaces, several shoe pads, a number of fancy legal work paperclips, a large amount of ketchup and mustard packets, and a folder containing a large amount of paperwork plaintiff was planning to use for researching and writing a book on the music industry, including weekly charts, album reviews, artist interviews, biographies, special articles and features, and photos. That paperwork was either sent to plaintiff by friends and relatives or was culled from various publications since at least June 14, 2011.
Upon discovery of the items missing, plaintiff immediately requested that Flores return to plaintiff's cell. Flores returned a short time later, and plaintiff requested that the paperwork be returned to him immediately because pursuant to the ARs, it should never have been confiscated. Flores, however, "still stubbornly refused to return it to him, demonstrating that his actions were most likely motivated by retaliatory intent by replying that since the plaintiff's previous round of complaints, grievances, and lawsuits against him on this topic had (he assumed) failed, he sure wouldn't be getting what he wanted this time either." (Docket No. 6 at 4). Flores also rudely ignored plaintiff's request to arrange for a disposition of his research materials in accordance with the ARs. Flores's "attitude/demeanor when the plaintiff first called him to his cell.. to contest the confiscation of his property was as if he was thinking here's Frazier complaining again, ' and the fact that he then tersely issued a demand that was impossible for him to satisfy in order to simply get him to return what should never have been taken from him in the first place just screams vindictiveness'.... Then when the plaintiff got him to return to his cell one last time in order to make one final plea to him to give back his property, the fact that Flores even brought up his prior lawsuit against him for having done the very same thing to him 2 ½ years earlier in cruelly refusing to even so much as allow him to merely mail home or release said items in lieu of maintaining possession of them, again in the face of regulations that stipulated that as being proper procedure, leaves no doubt that Flores had a fair amount of revenge on his mind in proceeding down his path of destruction...." (Docket No. 6 at 14).
Later that day, plaintiff ran into Case Manager Infante, who said she had supervised the search and authorized the confiscation of the items, and she repeated the same "mindless excuse" as Flores had stated that because it contained information taken from magazines and newspapers, it was deemed to have been altered and so was legitimately taken.
On October 8, 2013, plaintiff was summoned to meet with Flores to resolve plaintiff's Informal Grievance against him. "Flores demonstrated the true retaliatory underpinnings of his cruel destruction of the plaintiff's property from the very moment he entered the room, telling the plaintiff that he'd just gotten a couple of white towels for him to finally remedy a months-old laundry issue, but that he would not give them to him now since the plaintiff was putting him through the same old hassles (as 2011) again." (Docket No. 6 at 6). Plaintiff opted to go to the gym rather than continue the pointless token discussion that Flores had been having with him, which prompted Flores to declare that the issue had been resolved because plaintiff had abandoned it.
On October 11, 2013, Flores further retaliated against plaintiff by forcing plaintiff to move to an entirely different unit on a moment's notice after plaintiff and his new cellmate had a minor disagreement. Standard procedure would have been to move the cellmate since he was the person lodging the complaint and had lived there only for a matter of weeks whereas plaintiff had lived there for 22 months. As a result, plaintiff lost the easier job he had worked up to in his pod and had to start over, was unable to practice with his basketball team, was no longer with a lot of good friends, and now had to put together a new personal schedule/routine. On October 22, 2013, Flores retaliated against plaintiff yet again by moving him to still another new unit, to further disrupt his life.
On December 2, 2013, plaintiff submitted a completed lost/damaged/stolen personal property claim form to Case Manager Torres. With a "measure of retaliatory intimidation thrown in, " Torres quickly called Flores to report that plaintiff had submitted the list. Flores informed Torres that he was aware plaintiff was suing him again and told plaintiff that the paperwork that plaintiff attached to his property claim to prove ownership of the publications contained evidence that would support a COPD charge of fraud. Plaintiff, however, was never charged with a violation, but his paperwork damaged/stolen personal property claim and attached receipts mysteriously disappeared.
On December 3, 2013, "Torres added to her retaliation against the plaintiff on behalf of UM Flores" by serving plaintiff with a warning letter regarding the filing of frivolous grievances. (Docket No. 6 at 7).
On May 21, 2014, plaintiff was summoned to see Flores about a grievance he had submitted two days before. Flores did not make a good faith effort to resolve the issue but instead retaliated against plaintiff "by assuming an accusatory stance in threatening to file disciplinary charges against him." (Docket No. 6 at 8). Charges were never brought, but Flores "got back at the plaintiff" because plaintiff's cell was "ransacked" about 1.5 hours later, and plaintiff's only copy of that grievance and other items were seized by Sgt. Cardenias and Ms. Fry, who did Flores' "dirty work" for him because they had no business being ...