United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, JUDGE UNITED STATES DISTRICT COURT
Plaintiff Kelby Snyder is an inmate currently detained at the Denver County Jail. Mr. Snyder has filed pro se an Amended Prisoner Complaint (ECF No. 13) pursuant to 42 U.S.C. § 1983. On February 9, 2016, Magistrate Judge Gordon P. Gallagher reviewed the Amended Complaint, found it deficient, and directed Mr. Snyder to file, within thirty days, a second amended complaint that alleged facts supporting an arguable claim for relief against the named Defendants. (See ECF No. 15). Mr. Snyder did not submit a second amended complaint within the time allowed.
The Court must review the Amended Complaint liberally because Mr. Snyder 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). However, the Court should not act as a pro se litigant’s advocate. Hall, 935 F.2d at 1110.
The Court has granted Mr. Snyder leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Therefore, the Court must dismiss the action if Mr. Snyder’s claims are frivolous, malicious, or fail to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B). 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). For the reasons stated below, the Court will dismiss the Amended Complaint as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
I. Allegations in the Amended Complaint
Mr. Snyder alleges the following facts in the Amended Complaint.
On December 3, 2014, Defendant Spilde told Mr. Snyder to “wrap it up muther [sic] fucker out of no were [sic].” (ECF No. 13, at 4-5). Mr. Snyder further asserts that two unknown prison guards then “grabed [sic] my arms and stretched my arms out wide and were twisting. They said you keep it up we’ll slam you on your face right here. I said what are you going to do punch me in my face too the guard said If I get the chance.” (ECF No. 13, at 4-5). He asserts police misconduct, excessive force, and harassment based on this incident.
On January 20, 2015, Defendant Gomez took Mr. Snyder’s legal mail documenting “these events that I’m suing about . . . which is why I don’t know some officers names.” (Id., at 4, 6). He further alleges that an unknown prison officer “threw me against the wall and put me in handcuffs” and said “shut up before I beat you up.” (Id., at 6). Based on this incident, he asserts excessive force, harassment, police misconduct, and a “violation of my right to have legal documentation.” (Id.).
When Defendant Beauler arrested him in November, she said “now if you happen to move I swear to God you’ll regret it as she was twisting my fingers.” (Id., at 7). He further contends that she placed him in the police car without air for an hour. (Id.). He asserts excessive force, harassment, police misconduct, and police brutality based on this incident.
On October 21, 2015, Mr. Snyder was assaulted by his “bunky” and an unknown sergeant said he “was not allowed to press charges.” (Id., at 8). He further alleges that the unknown sergeant telephoned Mr. Snyder’s lawyer but the call was not accepted. (Id.). Mr. Snyder asserts that he was “denied my rights when I was taken out for a assault/fight.” (Id.).
For relief, Mr. Snyder requests compensatory damages.
Although Mr. Snyder fails to assert under what federal law or section of the Constitution he is raising his claims for police misconduct, harassment, and excessive force against prison officials at the Denver County Jail, it appears that he is asserting claims under the Due Process Clause of the Fifth and Fourteenth Amendments, which prohibit defendants from undertaking acts that amount to punishment. See Bell v. Wolfish, 441 U.S. 520, 535 (1979).
Although the Due Process Clause governs a pretrial detainee’s claim of unconstitutional conditions of confinement, the Eighth Amendment standard provides the benchmark for excessive force claims. Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998). In this regard, the use of excessive physical force against a prisoner may constitute cruel and unusual punishment in violation of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 4 (1992). The core judicial inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline or maliciously and sadistically to cause harm.” Id. at 7. As the Supreme Court made clear in Hudson, “[n]ot every push or shove” violates a prisoner’s constitutional rights. Id. at 9 (recognizing that not every malevolent touch by a prison guard gives rise to a federal cause of action). Moreover, an “inmate who complains of a ‘push or shove’ that causes no discernible injury almost certainly fails to state a valid excessive force claim." Wilkins v. Gaddy, 559 U.S. 34, 38 (2010). Thus, ...