United States District Court, D. Colorado
SCOTT S. SATTERWHITE, Plaintiff,
DEPARTMENT OF CORRECTIONS, STATE OF COLORADO, BS, Lt., Laundry Dept, CSP, KATHLEEN BOYS, N.P., CSP Medical Department, and JANE DOE, Swing Shift Sgt., B-Pod, CSP, Defendants.
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Gordon P. Gallagher United States Magistrate Judge
Plaintiff, Scott S. Satterwhite, is in the custody of the Colorado Department of Corrections (CDOC) at the Colorado State Penitentiary in Canon City, Colorado. Mr. Satterwhite has filed a Prisoner Complaint, pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983, claiming a deprivation of his constitutional rights. He 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. Satterwhite 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, Mr. Satterwhite will be ordered to file an amended complaint.
I. The Complaint
Plaintiff alleges in the Complaint that on March 10, 2016, he was moved to a new cell. When he received his personal property, he realized that he was missing two t-shirts and a towel that had been sent to the laundry department three days earlier a microwave bowl, and a Bible. He further states that his other Bible was returned to him “in 6 different pieces” with ten pages missing. (ECF No. 1 at 3). Mr. Satterwhite claims that the Bible was destroyed intentionally by the Defendant Jane Doe swing shift sergeant, and that the shirts and towels were “stolen” by Defendant Lt. Borders and the CSP laundry department “in retaliation for assault on intake staff.” (Id. at 5).
Mr. Satterwhite also alleges that Defendant Boyd saw him concerning his planter’s wart on November 7, 2015, and told Plaintiff that it would be cut out or burned, but he has not received any medical treatment to date. He further states that in December 2015, an ophthalmologist in Pueblo recommended that he have surgery “for cataracts and glaucoma” or he would be blind in 8-12 months. (Id. at 6). The first part of the surgery was scheduled for February 22, 2016, but was postponed by “C.T.U.” because there were no personnel available to transport Plaintiff to the appointment. (Id.). Plaintiff makes additional allegations that Defendant Boyd has refused to provide him with prescribed petroleum jelly for scar tissue in his nose caused by “snorting drugs for 28 years, ” and has refused to provide him with prescribed “Ba[ ]itracin ointment. (Id.). Mr. Satterwhite requests monetary relief.
A. Eleventh Amendment Immunity
The Prisoner Complaint is deficient because the
§ 1983 claims against Defendant CDOC and the State of Colorado are barred by the Eleventh Amendment. Eleventh Amendment immunity extends to states and state agencies deemed ''arms of the state'' that have not waived their immunity, regardless of the relief sought. Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252B53 (10th Cir. 2007). The CDOC is an arm of the state entitled to Eleventh Amendment immunity. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988). Congress did not abrogate Eleventh Amendment immunity through Section 1983. See Quern v. Jordan, 440 U.S. 332, 345 (1979). Accordingly, the CDOC and State of Colorado are improper parties to this action.
B. Destruction or Confiscation of Personal Property
The Fourteenth Amendment protects individuals against deprivations of property without due process of law. U.S. Const. amend. XIV, § 1. Insofar as the Defendants merely acted with simple negligence, that would not be enough to raise due process concerns. See Daniels v. Williams, 474 U.S. 327, 330-31 (1986) (overruling prior precedent “to the extent that it states that mere lack of due care by a state official may ‘deprive’ an individual of life, liberty, or property under the Fourteenth Amendment”).
Moreover, unauthorized deprivations of a prisoner's property do not violate due process where adequate state post-deprivation remedies are available. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Becker v. Kroll, 494 F.3d 904, 921 (10th Cir. 2007) (“[W]here pre-deprivation remedies cannot anticipate and prevent a state actor's wrongful act, post-deprivation state tort remedies are adequate to satisfy due process requirements.”). Mr. Satterwhite alleges that he exhausted his available administrative remedies. (ECF No. 1 at 7). However, the fact that he did not prevail in the prison’s administrative remedy procedure does not render the grievance procedure inadequate. See Allen v. Reynolds, No. 11-1266, 475 F. App’x 280, 283 (10th Cir. April 6, 2012) (unpublished). Mr. Satterwhite also has an adequate state post-deprivation remedy under the Colorado Governmental Immunity Act, at § 24-10-118, C.R.S. (2015). See Amin v. Voigtsberger, No. 13-1400, 2014 WL 1259570, at *4 (10th Cir. Mar. 28, 2014) (unpublished). Accordingly, the allegations of the Prisoner Complaint fail to suggest a deprivation of Plaintiff’s Fourteenth Amendment due process rights in connection with the loss or destruction of his personal property.
Mr. Satterwhite asserts that his personal property was confiscated, lost or destroyed by Defendant Borders and other prison officials in retaliation for ...