United States District Court, D. Colorado
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
Gordon P. Gallagher United States Magistrate Judge
Plaintiff, James Faircloth, is a prisoner in the custody of the Colorado Department of Corrections (CDOC) at the Crowley County Correctional Facility in Olney Springs, Colorado (“CCF”). He initiated this action by filing pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C.
§ 1983 and 28 U.S.C. § 1343. Mr. Faircloth has been granted leave to proceed in forma pauperis.
The Court must construe the Complaint liberally because Mr. Faircloth 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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons discussed below, Mr. Faircloth will be directed to file an amended prisoner complaint.
I. The Complaint
Plaintiff states that the case “is a prison condition of confinement and stoppage of the U.S. mail(s) issue involving the named defendants and C.C.A. and CDOC as involved parties in the stoppage of the Plaintiff’s legal mail without good cause other than the nefarious reasons disguised as policy to give themselves some type of plausible deniability to negate their conspiracy to violate my rights to access the courts meaningfully and adequately.” (ECF No. 1, at 5). He alleges that Defendant Bazona “committed a PREA-sexual harassment of my person while doing a strip search on or about October 21, 2015” and that he submitted a PREA (Prison Rape Elimination Act) report. (Id., at 6). Plaintiff further alleges that Defendant Bazona “implemented the $2.00 mail outgoing” postage restriction after Plaintiff filed a grievance against corrections officer Wagner who told Plaintiff he “was trying to get my case against Lt. Bazona dismissed by interfering with my ability to litigate in all my cases so I could no longer access the Courts effectively.” (Id.). Plaintiff further alleges that Defendant Zupan told him that he placed the mail restriction on Plaintiff’s outgoing mail on March 17, 2016 in “reprisal” for Plaintiff’s PREA report against Defendant Bazona. (Id.). He contends that he has contacted Defendants Raemisch, Miller, Zupan, Hininger, Holcomb, Bazona, and CDOC to complain about the postage restriction and retaliation, but they have failed to respond. (Id., at 6-7). In the Complaint, Mr. Faircloth asserts three claims for relief and requests declaratory, injunctive, and monetary relief.
Claim One: Plaintiff alleges that Defendants have conspired to deprive him of his constitutional right of access to the courts by stopping Plaintiff’s outgoing legal mail from being “sent to lawyers, courts, public officials for remedy in his open civil and criminal cases.” (ECF No. 1, at 8). Plaintiff further alleges that “cases have been dismissed and others are in danger of dismissal because of Defendants acts in stopping and singling out my outgoing legal mail to be stopped.” (Id.).
Claim Two: Plaintiff asserts that Defendants have violated his First Amendment rights because they have “caused a known retaliation and failed to stop each other and have complied with each other’s efforts to enact a reprisal and use policy in A.R. 300-38, IV, B-8 a&b to implement their reprisal knowing it singled me out and reprised my access to Courts and hindered by ability to litigate against them and their colleagues.” (ECF No. 1, at 9). He contends that Defendants have retaliated against him for the PREA report against Defendant Bazona and Civil Action No. 12-cv-03317-REB-KLM. (Id., at 10). He further alleges that he has sent letters, notices, and complaints to Defendants Raemisch, Hininger, Miller, and Zupan. (Id.). He also asserts that he was placed in segregation on or about April 12, 2016 for filing a grievance about putting him in a “dangerous and infectious environment and not following protocol for prophylaxis of chickenpox.” (Id., at 7).
Claim Three: Plaintiff alleges that Defendants have violated his Fourteenth Amendment due process and equal protection rights by stopping his mail based on his indigent status. (ECF No. 1, at 11). He further asserts that non-indigent prisoners are treated differently. (Id.).
A. Vague and conclusory allegations
The Complaint is deficient because Mr. Faircloth’s claims are based on vague and conclusory allegations that his federal constitutional rights have been violated. Conclusory allegations do not entitle a pro se pleader to a day in court regardless of how liberally the court construes such pleadings. See Ketchum v. Cruz, 775 F.Supp. 1399, 1403 (D. Colo. 1991), aff’d, 961 F.2d 916 (10th Cir. 1992). Furthermore, the general rule that pro se pleadings must be construed liberally has limits and “the court cannot take on the responsibility of serving as the litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Thus, “in analyzing the sufficiency of the plaintiff’s complaint, the court need accept as true only the plaintiff’s well pleaded factual contentions, not his conclusory allegations.” Hall, 935 F.2d at 1110.
In order to state a cognizable claim in federal court Mr. Faircloth must identify the specific factual allegations that support each claim, against which Defendant or Defendants he is asserting each claim, and what each Defendant did that allegedly violated his rights. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (noting that, to state a claim in federal court, “a complaint must explain what each defendant did to him or her; when the defendant did it; how the defendant’s action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated”).
A. Eleventh Amendment Immunity
The Complaint also is deficient because the State of Colorado and its entities, including the Colorado Department of Corrections, are protected by Eleventh Amendment immunity. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989); Meade v. Grubbs, 841 F.2d 1512, 1525-26 (10th Cir. 1988). “It is well established that absent an unmistakable waiver by the state of its Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by Congress, the amendment provides absolute immunity from suit in federal courts for states and their agencies.” Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994), overrruled on other grounds by Ellis v. University of Kansas Med. Ctr., 163 F.3d 1186 (10th Cir. 1998). The State of Colorado has not waived its Eleventh Amendment immunity, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988), and congressional enactment of § 1983 did not abrogate Eleventh Amendment immunity, see Quern v. Jordan, 440 U.S. 332, 340-345 (1979). Claims asserted against the individual Defendants in their official capacities are construed as claims against the State of Colorado, see Hafer v. Melo, 502 U.S. 21, 25 (1991), and are also barred by ...