Montgomery v. Raemisch

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Gordon P. Gallagher United States Magistrate Judge

         This matter comes before the Court on the Second Amended Prisoner Complaint (ECF No. 15)^[1]. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 17)^[2]. The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Amended Prisoner Complaint (ECF No. 15) be dismissed in part and the remaining claims be drawn to a presiding judge.

         I. Background

         Plaintiff, Kevin M. Montgomery, is in the custody of the Colorado Department of Corrections, currently incarcerated at the Colorado Territorial Correctional Facility in Canon City, Colorado. On November 13, 2018, he filed pro se a Prisoner Complaint (ECF No. 1), and a Motion To: File Without Payment of Filing Fee Pursuant to C.R.S. § 13-17.5-103 (ECF No. 3). On December 4, 2018, in response to a Court Order to Cure Deficiencies, Plaintiff filed a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915. (ECF No. 7).

         On January 23, 2019, the Court ordered Mr. Montgomery to file an amended prisoner complaint. (ECF No. 11). The order to amend included specific instructions for Mr. Montgomery to file his amended prisoner complaint on the current court-approved form, without re-ordering the sections, adding additional sections, and/or making changes to any of the sections in the court-approved form. (Id. at 7).

         In response, on February 22, 2019, Plaintiff filed an Amended Prisoner Complaint (ECF No. 12), and a Motion Requesting Appointment of Counsel (ECF No. 13). However, despite the specific instructions in the Court's January 23, 2019 Order, the Amended Prisoner Complaint was still not on the court-approved form. On March 21, 2019, the Court again ordered Plaintiff to use the current court-approved Prisoner Complaint form, in the proper format, without re-ordering or changing sections, and without inserting sections that are not part of the court-approved form. (ECF No. 14).

         On April 5, 2018, Plaintiff filed a Second Amended Prisoner Complaint on the court-approved form. (ECF No. 15). The Court must construe Plaintiff's Second Amended Prisoner Complaint liberally because he 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 a pro se litigant. See Hall, 935 F.2d at 1110.

         Plaintiff was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 8). Under § 1915(e)(2)(B)(i), the Court must dismiss the action or any claims if the claims are frivolous or malicious. 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).

         II. Second Amended Prisoner Complaint

         Plaintiff names nine defendants and asserts the following seven claims:

1. “Defendant Crane violated Plaintiff's 1^st, 5^th, 8^th and 14^thAmendment Rights of the United States Constitution to free speech and to petition the government without retaliation. Defendant Crane was deliberate [sic] indifference to a serious medical need by interfering with Plaintiff's medical orders. Defendant Crane denied Plaintiff due process by having his medical orders revoked without notice or the opportunity to defend.”

2. “Defendants Eggers violated Plaintiff's 5^th, 8^th, and 14^thAmendment Rights of the United States Constitution. Defendant Eggers was deliberate [sic] indifference to a serious medical need by interfering with Plaintiff's medical orders and denied Plaintiff due process by having Plaintiff's medical orders revoked without notice or the opportunity to defend.”

3. “Defendants Dr. R. Magnuson violated Plaintiff's 5^th, 8^th, & 14^th Amendment Rights to the United States Constitution, he was deliberate [sic] indifference to a serious medical need by revoking medical orders at the request of custody to which one of the orders was written by a different doctor and he denied Plaintiff of due process by failing to give Plaintiff notice or the opportunity to defend.”

4. “Defendant J. Gilden violated Plaintiff's 5^th, 8^th & 14^thAmendment Rights, to the United States Constitution, denial of due process and was deliberate [sic] indifference to a serious medical need by revoking medical orders at the request of custody staff defendant T. Crane.”

5. “Defendant Sparks violated Plaintiff's 8^th amendment Rights, was deliberate [sic] indifference to a serious medical need. Unnecessary and wanton infliction of pain under the 8^th Amendment of the United States Constitution. Also Violating ADA 42 U.S.C. § 12132 by failing to properly house Plaintiff pursuant to his ADA Accommodations.”

6. “Defendants G. Montoya violated Plaintiff's 1^stAmendment Rights of the United States Constitution to free speech and to petition the government without retaliation by threatening and harassing Plaintiff.”

7. “Defendants Executive Dir. Rich Raemisch, Warden Mike Romero, Capt. D. Williams and Lt. D. Eggers all violated Plaintiff's 1^st & 8^th Amendment Rights to the United States Constitution.”

(ECF No. 15).

         According to Plaintiff, on or about September 28, 2017, he filed a complaint against Sgt. Martin and Defendant Sgt. Crane for “Falsifying Records/ Discrimination.” After an investigation, Sgt Crane and Sgt Martin were separated from working together in cell house 3. Since then, Plaintiff alleges that Defendant Crane has ...