Peterson v. Shanks, 96-2190

Decision Date15 July 1998
Docket NumberNo. 96-2190,96-2190
Citation149 F.3d 1140
Parties98 CJ C.A.R. 3819 David S. PETERSON, Plaintiff-Appellant, v. John SHANKS, Warden, Wilfred Romero, and Major Ruben Vigil, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Jeffrey J. Buckels, Albuquerque, NM, for Plaintiff-Appellant.

Melinda L. Wolinsky and Ida M. Lujan, Deputy General Counsel, New Mexico Corrections Department, Santa Fe, New Mexico, for Defendants-Appellees.

Before MURPHY, HOLLOWAY, and MAGILL, * Circuit Judges.

MAGILL, Circuit Judge.

David S. Peterson, an inmate at the Penitentiary of New Mexico, brought this pro se suit under 42 U.S.C. § 1983, alleging that prison officials had violated his right to be free from retaliation for the exercise of constitutional rights, his right to have access to the courts, and his right to family visitation. Peterson also raised claims that prison officials violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68, the New Mexico anti-racketeering statute, N.M. Stat. Ann. §§ 30-42-1 to 30-42-6, and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4. The district court dismissed the family visitation, RICO, New Mexico antiracketeering, and RFRA counts for failure to state a claim, and granted summary judgment on the access to courts and retaliation claims. Peterson now appeals, and we affirm.

I.

Peterson has been incarcerated in the New Mexico state prison system since 1988. From November 23, 1988, until November 22, 1994, Peterson was housed at the Central New Mexico Correctional Facility, where he proved himself to be an ambitious jailhouse lawyer. Peterson represented a number of inmates at administrative hearings, filed habeas corpus petitions, and brought lawsuits against prison officials.

On December 10, 1993, one day after Peterson attended a child custody hearing, Peterson was placed in segregation for allegedly attempting to escape from prison. Peterson alleges that Warden John Shanks, a defendant in the instant suit, visited him at his segregation cell and said: " 'You tricky little bastard, I've got you now. I'm going to fuck you for each and every suit you have done against me and the prison. You tried to escape and I got your ass.' " Amend. Compl. at 2, reprinted in R. at Tab 23. Following his alleged escape attempt, Peterson spent forty-nine days in segregation and was removed from the honor unit of the prison. Peterson contends that Warden Shanks directed a hearing officer to find him guilty of attempting to escape, but that the charge was dismissed on appeal for lack of evidence.

On March 18, 1994, Peterson filed suit in New Mexico state court against Warden Shanks, seeking to have the Warden removed from office. In his suit, Peterson alleged that Warden Shanks received bribes from a food service company in exchange for not enforcing the prison's contract with the company. In September 1994, the New Mexico trial court ruled against Peterson, and Peterson began pursuing an appeal in the case.

Peterson alleges that Warden Shanks was angry with him for filing the March 18 lawsuit. In the summer of 1994, Peterson was removed from an inmate-child visitation program (the Impact Program), and he was denied a vegetarian diet that he allegedly required for an unidentified religious faith. On November 10, 1994, Peterson was again placed in segregation, this time because he had been assaulted while housed in the prison's general population. Although Peterson now contends that he was not at risk from other inmates at the Central New Mexico Correctional Facility, Peterson was transferred to the Penitentiary of New Mexico on November 22, 1994.

At the time of his transfer, Peterson was working on a reply brief on his word processor for his appeal of the dismissal of his March 18 lawsuit against Warden Shanks. The Penitentiary of New Mexico, however, prohibits inmates from possessing computers, because inmates can put escape plans, lotteries, and betting sheets in encrypted files. See PNM Procedures: Inmate Personal Property § II(C)(1)(j) (1994) ("Typewriters may be electric or manual, but may not possess computer, or disk operating features, i.e., floppy discs, magnetic cards, etc." (emphasis in original)), reprinted in R. at Tab 33; Id. § II(C)(5) ("Computer hardware or software will not be sold in the canteens or allowed as personal property."), reprinted in R. at Tab 33. Accordingly, Peterson's word processor and floppy disks were confiscated and given to his father. Although the New Mexico Court of Appeals repeatedly gave Peterson extensions of time in which to file his reply brief, Peterson never filed a reply brief, and the trial court was ultimately affirmed.

On April 8, 1995, Warden Shanks also transferred from the Central New Mexico Correctional Facility and became the warden of the Penitentiary of New Mexico. Following Warden Shank's arrival at the Penitentiary of New Mexico, Peterson contends that Warden Shanks ordered prison employees to read Peterson's mail, and that a contract Peterson mailed to a friend was removed and destroyed. Peterson also contends that he was denied a transfer into a clean and quiet housing unit at the penitentiary.

On August 7, 1995, Peterson filed this lawsuit in the United States District Court for the District of New Mexico against Warden Shanks and other officials of the Penitentiary of New Mexico. On March 21, 1996, the magistrate judge recommended dismissing all of Peterson's claims, except for the retaliation and access to courts claims, for Peterson's failure to state a claim upon which relief could be granted. The district court adopted the recommendation without modification. On July 12, 1996, after the defendants filed a report pursuant to Martinez v. Aaron, 570 F.2d 317, 319-20 (10th Cir.1978) (per curiam), the magistrate judge recommended granting summary judgment against Peterson on his remaining claims. The district court again adopted the magistrate's recommendation and granted summary judgment against Peterson. Peterson now appeals. 1

II.

We review the district court's dismissal of Peterson's complaint and grant of summary judgment de novo. See Coosewoon v. Meridian Oil Co., 25 F.3d 920, 924, 929 (10th Cir.1994). Because Peterson filed his complaint pro se, we must construe his complaint liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

"We believe that this rule means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements. At the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant."

Id. (footnote omitted). Accordingly, "we will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded." Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.1989) (per curiam).

In considering an inmate's suit against prison officials, we recognize "that courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform." Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (quotations omitted). As the Supreme Court has explained, "the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have ... additional reason to accord deference to the appropriate prison authorities."

Id. at 84-85, 107 S.Ct. 2254 (quotations and citation omitted).

We have held that "[p]rison officials may not retaliate against or harass an inmate because of the inmate's exercise of his" constitutional rights. Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.1990). "This principle applies even where the action taken in retaliation would be otherwise permissible." Id. at 948. As the Supreme Court made clear in Turner, however, it is not the role of the federal judiciary to scrutinize and interfere with the daily operations of a state prison, and our retaliation jurisprudence does not change this role. Obviously, an inmate is not inoculated from the normal conditions of confinement experienced by convicted felons serving time in prison merely because he has engaged in protected activity. Accordingly, a plaintiff "must prove that 'but for' the retaliatory motive, the incidents to which he refers, including the disciplinary action, would not have taken place." Id. at 949-50. An inmate claiming retaliation must "allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights." Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir.1990) (emphasis added).

We conclude that Peterson's allegations of retaliation must fail because he has presented no evidence that ...

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