17 F.3d 1347 (10th Cir. 1994), 93-1324, Lucero v. Gunter

Docket Nº:93-1324.
Citation:17 F.3d 1347
Party Name:Anthony LUCERO, Plaintiff-Appellant, v. Frank GUNTER, Director, Colorado Department of Corrections; Bob Furlong, Warden, Limon Correctional Facility; Captain Nordeen; Samu Endre; G. Hochstadter, Sergeant, Defendants-Appellees.
Case Date:March 02, 1994
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1347

17 F.3d 1347 (10th Cir. 1994)

Anthony LUCERO, Plaintiff-Appellant,

v.

Frank GUNTER, Director, Colorado Department of Corrections;

Bob Furlong, Warden, Limon Correctional Facility;

Captain Nordeen; Samu Endre; G.

Hochstadter, Sergeant,

Defendants-Appellees.

No. 93-1324.

United States Court of Appeals, Tenth Circuit

March 2, 1994

Page 1348

Submitted on the briefs: [*]

Anthony Lucero, pro se.

Gale A. Norton, Attorney General, Stephen K. Erkenbrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Timothy R. Arnold, Deputy Attorney General, Gregg E. Kay, First Assistant Attorney General, Simon P. Lipstein, Assistant Attorney General, Tort Litigation Division, Denver, Colorado, for defendants-appellees.

Before SEYMOUR, Chief Judge, McKAY and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff Anthony Lucero, appearing pro se, appeals the district court's dismissal of some issues and grant of summary judgment as to the remaining issues in his civil rights complaint. 42 U.S.C. Sec. 1983. We have jurisdiction under 28 U.S.C. Sec. 1291.

Plaintiff is an inmate at the Limon Correctional Facility, which is part of the Colorado Department of Corrections ("DOC"). On October 22, 1992, DOC officials asked Plaintiff to submit to a urinalysis for drug testing. In response, Plaintiff asked whether he was under criminal investigation and asked to speak with his attorney before producing a urine sample. The prison officials denied the request and insisted that Plaintiff submit to a urinalysis. Plaintiff refused to comply.

DOC officials subsequently charged Plaintiff with "disobeying a lawful order" and served Plaintiff with a notice of charges on November 4, 1992 at 5:15 p.m. A disciplinary hearing was originally scheduled for November 5, 1992 at 3:45 p.m.; however, the hearing was rescheduled for November 20, 1992, in order to provide Plaintiff with twenty-four

Page 1349

hours notice of the charges filed against him as required by prison policy and to afford Plaintiff the opportunity to consult an attorney. At the November 20, 1992 disciplinary hearing, DOC officials found Plaintiff guilty of disobeying a lawful order and ordered Plaintiff to serve ten days in punitive segregation and assessed eighteen days loss of good time credits.

On February 3, 1993, Plaintiff filed a pro se civil rights complaint pursuant to 42 U.S.C. Sec. 1983 in district court. Count I of the complaint alleged that prison officials violated Plaintiff's Fourth, Fifth, and Sixth Amendment rights when they requested that he submit to a urinalysis. Count II of the complaint alleged prison officials violated Plaintiff's due process rights by failing to provide Plaintiff with a notice of charges twenty-four hours prior to his disciplinary hearing. Defendants moved to dismiss Count I and moved for summary judgment as to Count II. The district court adopting the magistrate's findings and recommendations, granted Defendants' motions for dismissal and summary judgment, and this appeal followed.

I.

Plaintiff contends the district court erred in dismissing Count I of his complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The sufficiency of a complaint is a question of law which we review de novo. Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). In reviewing the dismissal of a pro se litigant's complaint under Fed.R.Civ.P. 12(b)(6), we liberally construe the plaintiff's pleadings, presume all of plaintiff's well-pleaded factual allegations are true, and view the allegations in the light most favorable to the plaintiff. Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir.1991). When a complaint alleges a constitutional claim under Sec. 1983, the constitutional claim "should not be dismissed unless it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief." Dunn v. White, 880 F.2d 1188, 1190 (10th...

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