United States District Court, D. Colorado
KEVIN M. MONTGOMERY, Plaintiff,
v.
RICK RAEMISCH, Executive Dir. Of Prisons, MIKE ROMERO, Warden at CTCF, DINO WILLIAMS, Captain at CTCF, DANNY EGGERS, Lieutenant at CTCF, TAMMY CRANE, Sargent at CTCF, GILBERT MONTOYA, Correctional Officer at CTCF, ROBERT MAGNUSON, Medical Director at CTCF, JANE GILDEN, Nurse Practitioner at CTCF, B. SPARKS, Lieutenant, Defendants.
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
1st, 5th, 8th and
14thAmendment 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
5th, 8th, and 14thAmendment
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
5th, 8th, & 14th
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
5th, 8th & 14thAmendment
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
8th amendment Rights, was deliberate [sic]
indifference to a serious medical need. Unnecessary and
wanton infliction of pain under the 8th 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
1stAmendment 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 1st & 8th 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 ...