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Smith v. Raemisch

United States District Court, D. Colorado

February 12, 2016

BERT SMITH, Plaintiff,
v.
RICK RAEMISCH, CROSSROADS TO FREEDOM, GIORDANO, Officer, SHANE MARTIN, ANDRES ABALOS, VINCENT ROMERO, WILLIAM BAILEY, MARVEL WOLKEN, MARCIA JACKSON, BENETTA CRUZ, and CONNIE PALM, Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

GORDON P. GALLAGHER UNITED STATES MAGISTRATE JUDGE.

Plaintiff, Bert Smith, is in the custody of the Colorado Department of Corrections and is incarcerated currently at the Colorado State Penitentiary in Canon City, Colorado. He has filed a Prisoner Complaint asserting deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Mr. Smith has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

The Court must construe the Complaint liberally because Mr. Smith 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. The Court has reviewed the Complaint and has determined that it is deficient. For the reasons discussed below, Plaintiff will be directed to file an Amended Complaint.

I. The Complaint

Mr. Smith alleges the following in the Prisoner Complaint: On June 30, 2014, Defendants Wolken, Palm, Martin, Romero, Crossroads to Freedom, and Raemisch committed him involuntarily to “Crossroads to Freedom” -- the mental illness treatment program at Arrowhead Correctional Facility -- based on an invalid assessment score and evaluation. Plaintiff’s mental health commitment continued to April 27, 2015. He alleges that during his placement in the Crossroads to Freedom program, Defendants Cruz, Romero, and Crossroads to Freedom refused to provide him with information on his course of treatment and the fee schedule for treatment.

Mr. Smith alleges that on September 11, 2014, Defendant Cruz fabricated a misbehavior report against him and thereafter labeled him a “racist” in front of minority groups during therapy sessions and published false accusations about his character.

Plaintiff alleges that he was subjected to disciplinary action based on fabricated disciplinary reports issued by Defendants Cruz, Marvel, Wolken, Romero, Bailey, Jackson, Giordano, Abalas and Crossroads to Freedom on the following dates: October 15, 2014 (for sarcasm); January 16, 2015 (for an unknown charge); January 21, 2015 (for “manipulation of the pull-up system”); January 26, 2015 (for “reaching for intellectual power in order to commit some technically sophisticated and futuristic crimes”); January 28, 2015 (for “lack of progress” and “passive aggressive and vindictive behavior”); February 9, 2015 (for complaining to other inmates about Defendant Giordano’s actions); February 13, 2015 (for an unknown charge); and, February 20, 2015 (for “not participating” and “breach of contract”). (ECF No. 1 at 8-13).

In late February or early March 2015, Defendant Romero imposed punitive sanctions against Mr. Smith for “not taking the program seriously.” (ECF No. 1 at 12).

On March 29, 2015, Defendants Cruz, Romero, Jackson, Palm, Abalos, Bailey and Crossroads to Freedom disciplined Plaintiff for rule infractions committed by others.

On April 14, 2015, Defendants Jackson and Crossroads to Freedom discriminated against Plaintiff “because of his religious beliefs” and imposed sanctions for unspecified fabricated disciplinary offenses. (Id.).

On April 22, 2015, Defendants Jackson and Crossroads to Freedom coerced numerous inmates to file “bogus misbehavior reports” (id.) against Plaintiff in retaliation for Plaintiff’s complaints against Defendant Jackson.

On April 23, 2015, Defendants Cruz, Romero, Jackson, Palm, Abalos, Bailey and Crossroads to Freedom placed Plaintiff in segregation, fabricated disciplinary reports against him, and terminated him from the involuntary treatment program, and transferred him to a higher custody level facility, and “caused him to have an illegal extension of [his] term of confinement” without any hearing. (Id. at 13).

Mr. Smith asserts that the Defendants’ conduct violated his Eighth Amendment rights and his Fourteenth Amendment due process and equal protection rights. He further claims that his involuntary commitment infringed on his First Amendment free exercise rights, and that the fabricated disciplinary charges infringed on his First Amendment free exercise and free speech rights, as well as his right to be free from ...


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