627 F.3d 1178 (10th Cir. 2010), 08-8057, Gee v. Pacheco

Docket Nº:08-8057.
Citation:627 F.3d 1178
Opinion Judge:HARTZ, Circuit Judge.
Party Name:Donald GEE, Plaintiff-Appellant, v. Mike PACHECO, in his official capacity as Unit Manager, Wyoming Department of Corrections State Penitentiary; Vance Everett, in his official capacity as (former) Warden, Wyoming Department of Corrections State Penitentiary; Carl Voigtsberger, in his official capacity as Classification and Housing Manager, Wyoming
Attorney:Donald Gee, pro se. Hon. Bruce A. Salzburg, Wyoming Attorney General (John S. Renneisen, Deputy Attorney General, and Thomas W. Rumpke, Senior Assistant Attorney General, with him on the brief), Cheyenne, WY, for Defendants-Appellees, Pacheco, Everett, Voigtsberger, Abbott, Ruettgers, Hill, Shah,...
Judge Panel:Before HARTZ, McKAY, and ANDERSON, Circuit Judges.
Case Date:October 26, 2010
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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627 F.3d 1178 (10th Cir. 2010)

Donald GEE, Plaintiff-Appellant,

v.

Mike PACHECO, in his official capacity as Unit Manager, Wyoming Department of Corrections State Penitentiary; Vance Everett, in his official capacity as (former) Warden, Wyoming Department of Corrections State Penitentiary; Carl Voigtsberger, in his official capacity as Classification and Housing Manager, Wyoming Department of Corrections State Penitentiary; Scott Abbott, in his official capacity as Warden, Wyoming Department of Corrections State Penitentiary; Ronald G. Ruettgers, in his official capacity as Associate Warden, Wyoming Department of Corrections State Penitentiary; T. Hill, in his official capacity as Sergeant, Wyoming Department of Corrections State Penitentiary; Nadin Shah, in his/her official capacity as Sergeant, Wyoming Department of Corrections State Penitentiary; David Everett, in his official capacity as Correction Officer, Wyoming Department of Corrections State Penitentiary; Brian Wiseman, in his official capacity as Correction Officer, Wyoming Department of Corrections State Penitentiary; Desiree Lopez, in her official capacity as Mail Room Officer, Wyoming Department of Corrections State Penitentiary; Lenny Stillwell, in his official capacity as Sergeant, Wyoming Department of Corrections State Penitentiary; Garry Halter, in his official capacity as Lieutenant, Wyoming Department of Corrections State Penitentiary; S. Kelley, in his official capacity as Corporal, Wyoming Department of Corrections State Penitentiary; John Coyle, in his official capacity as physician to the Wyoming State Penitentiary, Defendants-Appellees,

Public Justice, P.C.; The American Civil Liberties Union; The Prisoner's Rights Project of The Legal Aid Society of The City Of New York, Amici Curiae.

No. 08-8057.

United States Court of Appeals, Tenth Circuit.

October 26, 2010 [*]

Page 1179

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Donald Gee, pro se.

Hon. Bruce A. Salzburg, Wyoming Attorney General (John S. Renneisen, Deputy Attorney General, and Thomas W. Rumpke, Senior Assistant Attorney General, with him on the brief), Cheyenne, WY, for Defendants-Appellees, Pacheco, Everett, Voigtsberger, Abbott, Ruettgers, Hill, Shah, Everett, Wiseman, Lopez, Stillwell, Halter, and Kelley.

Kathleen B. Dixon, Chapin & Dixon, LLP, Casper, WY, for Defendant-Appellee, John F. Coyle, D.O.

Claire Prestel, Public Justice, P.C., Washington, D.C. (Melanie Hirsch, Public Justice, P.C., Washington, D.C.; Alexander A. Reinert, Benjamin N. Cardozo, School of Law, New York, NY; Jennifer Horvath, ACLU of Wyoming, Cheyenne, WY; David C. Fathi, ACLU National Prison Project, Washington, D.C.; Mark Silverstein, ACLU of Colorado, Denver, CO; and John Boston, The Legal Aid Society of the City of New York Prisoners' Rights Project, New York, NY, with her on the brief) for Amici Curiae.

Before HARTZ, McKAY, and ANDERSON, Circuit Judges.

HARTZ, Circuit Judge.

Donald Gee is a prisoner in the Wyoming State Penitentiary (WSP) who represents himself before this court. On January 27, 2006, he filed in the United States District Court for the District of Wyoming a pro se civil-rights action under 42 U.S. C. § 1983 against Defendants, who are WSP officials. Mr. Gee alleged that Defendants violated his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution.1 His complaint includes 154 paragraphs, many of which are repetitive. Defendants moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Concluding that Mr. Gee had failed to state a claim upon which relief could be granted and that his complaint was frivolous, the district court granted the motion and dismissed the complaint with prejudice.

We have jurisdiction under 28 U.S. C. § 1291. We affirm the dismissal with prejudice of several claims because they are clearly barred by the statute of limitations or by claim preclusion. But we reverse the dismissal of the other claims and remand for further proceedings. Some of the allegations sufficiently alleged § 1983 claims and should have been allowed to

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proceed. As for the remaining claims, although the complaint failed to allege a cause of action adequately, it does not appear that the district court considered whether the defects in the complaint could be cured by amendment, and amendment would not necessarily be futile. Accordingly, the district court on remand should give Mr. Gee an opportunity to amend his allegations with respect to those claims.

I. BACKGROUND

For his First Amendment claims, Mr. Gee alleged that Defendants (1) had violated his right to communicate with persons outside the prison; (2) had violated his right to access the courts by (a) confiscating his legal files and hindering his access to them, (b) hindering his communications with a jailhouse lawyer and denying access to a law library, (c) reviewing his legal files, and (d) interfering with his legal mail; and (3) had violated his right to be free from retaliation for having exercised his First Amendment rights. For his Eighth Amendment claims, he alleged that Defendants (1) had transferred him to out-of-state prisons where he suffered conditions amounting to cruel and unusual punishment; (2) had subjected him to inhumane transport and cell conditions in Wyoming, including the denial of basic necessities; (3) had denied him medical treatment or rendered inadequate medical treatment for various conditions, including a sleepwalking disorder; and (4) had assaulted him while transferring him within the prison. And under the Fourteenth Amendment, Mr. Gee (1) challenged Defendants' decisions (a) to transfer him to prisons in other states, (b) to place him in an isolation cell and in segregation at WSP, and (c) to place information in his file and classify him at certain levels; (2) challenged particular disciplinary actions and hearings; (3) alleged that he had been deprived of property; and (4) alleged that he had been subjected to harassment, discrimination, and equal-protection violations.

Defendants moved to dismiss the complaint for failure to state a claim. 2 They submitted numerous documents in support of their motion. Although they did not prepare a formal Martinez report, see Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir.1978) (per curiam) (recommending preparation by state prison officials of investigative report to present to federal court in § 1983 suit brought by prisoner), some of their submissions were grievances and grievance responses, typical of the types of documents usually tendered in a Martinez report. They also attached filings from Mr. Gee's prior lawsuits and a variety of prison records, including monitoring reports, internal communications, and memoranda.

The district court dismissed the claims in Mr. Gee's complaint on several different grounds. With respect to the First Amendment claims, it ruled that the access-to-the-courts claims failed to allege all the required elements of the cause of action and that the allegations supporting the other claims were too vague and conclusory or failed to establish unconstitutional regulation or action. It dismissed the Eighth Amendment claims because the record contradicted Mr. Gee's allegations of denial of basic necessities; some claims were time-barred; the allegations regarding Mr. Gee's alleged sleepwalking disorder were frivolous; the allegations regarding his other medical conditions showed merely his disagreement with the treatment,

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not deliberate indifference to his conditions; and the record contradicted Mr. Gee's allegations that he was assaulted during a transfer within the WSP. As for the Fourteenth Amendment claims, the district court dismissed them because one of his equal-protection arguments was frivolous, he had no liberty interest in his classification status, he had already pursued some of his claims in a prior lawsuit, his placement in segregation was not so atypical and significant as to create a liberty interest, his claims about false information in his base file were speculative, other claims consisted entirely of conclusory allegations, and his allegations of being deprived of property did not rise to a constitutional violation because he did not allege that there was no adequate state remedy available.

II. DISCUSSION

A. Legal Standards for Stating a Claim

We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to state a claim. See Howard v. Waide, 534 F.3d 1227, 1242-43 (10th Cir.2008). " A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).

For many years the federal courts followed the rule that a claim can be dismissed only if " it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In 2007, however, the Supreme Court retired the Conley standard, stating that " Conley's ‘ no set of facts' language has been questioned, criticized, and explained away long enough." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 563, 127 S.Ct. 1955. Although restating the fundamental rule that the court, on a motion to dismiss, must assume that all factual " allegations in the complaint are true (even if doubtful in fact)," id. at 555, 127 S.Ct. 1955, it said the plaintiff must provide " more than labels and conclusions [or] a formulaic recitation of the elements of a cause of...

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