Northington v. Jackson

Decision Date17 August 1992
Docket NumberNo. 92-1068,92-1068
Citation973 F.2d 1518
PartiesCraig Bryant NORTHINGTON, Plaintiff-Appellant, v. Carlos JACKSON, Captain; Captain Rowe; Captain Brennis; Sergeant Motley; Dee Badley, Deputy Sheriff; Deputy Marin, Sheriff, and Deputy Sheriffs John Doe # 1, John Doe # 2, of Denver County Sheriff's Department; Denver County Sheriff's Department, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Craig Bryant Northington, pro se.

Theodore S. Halaby, Joseph M. Timmins of Halaby, McCrea & Cross, Denver, Colo., for defendants-appellees, and Louis B. Bruno of Bruno, Bruno & Colin, P.C., Denver, Colo., co-counsel for defendant-appellee Captain Carlos Jackson.

Before SEYMOUR, ANDERSON and BALDOCK, Circuit Judges. *

BALDOCK, Circuit Judge.

Plaintiff Craig Bryant Northington appeals from the dismissal of his 42 U.S.C. 1983 and § 1985 civil rights actions against various Denver sheriff's deputies, corrections officers and the Denver Sheriff's Department. All of the allegations regard misdeeds which occurred when Mr. Northington was awaiting transfer from the Denver County Jail to the Denver County Community Corrections facility while he was serving his community corrections placement sentence. In his pro se complaint, Mr. Northington alleged: (1) that defendant Deputy Sheriff Dee Badley violated his constitutional rights when she sold him a pickup truck in violation of his community corrections placement sentence and later threatened to bring charges against him for forging a notarization on the pickup title; (2) that defendants Captain Carlos Jackson and Sergeant Motley violated his due process rights and subjected him to cruel and unusual punishment by stopping him on his way from the Denver County Jail to his community placement worksite, holding a handgun to his head, hauling him back to the Denver County jail and forcing him to telephone Deputy Badley and implicate her in illegal activities at the jail; and (3) that the remaining defendants engaged in a civil conspiracy and subjected him to cruel and unusual punishment by telling prisoners that he was a "snitch" and repeatedly moving him from cell to cell in the jail to substantiate the rumor. The defendants moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6), and the district court referred the matter to a magistrate who held a telephonic evidentiary hearing and recommended dismissal. The district court subsequently adopted the magistrate's findings and recommendations over Mr. Northington's objection and dismissed the complaint under Rule 12(b)(6). Exercising de novo review, see Miller v. Glanz, 948 F.2d 1562 (10th Cir.1991), we affirm the dismissal of the § 1983 claims against The Denver Sheriff's Department, Deputy Badley, Captain Rowe and Captain Brennis as well as all of the § 1985 civil rights conspiracy claims; however, we reverse the dismissal of the § 1983 claims against Captain Jackson, Sergeant Motley and Deputy Marin, and remand for proceedings consistent herewith.

I. Pro Se Prisoner Complaints

As we recently expounded in Hall v. Bellmon, 935 F.2d 1106, 1108-11 (10th Cir.1991), there are three common pretrial points at which a district court may dispose of a pro se complaint such as Mr. Northington's. First, the court may dismiss the complaint as patently "frivolous or malicious" under 28 U.S.C. § 1915(d). Id. at 1108-09. See Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A claim is "frivolous" or "malicious" if it "is based on an "indisputably meritless legal theory." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. The § 1915(d) "frivolous" or "malicious" standard allows the district court to "pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Id. "Clearly baseless factual allegations are those that are 'fantastic' or 'delusional.' " Hall, 935 F.2d at 1109 (quoting Neitzke, 490 U.S. at 327-28, 109 S.Ct. at 1833). In making this determination, the district court is to weigh the allegations in favor of the in forma pauperis plaintiff. Denton v. Hernandez, --- U.S. ----, ----, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992). And we review for an abuse of discretion. Id. at ----, 112 S.Ct. at 1734. 1

Second, a district court may dismiss a pro se complaint under Rule 12(b)(6) for failure to state a claim. Under this rule, the complaint should not be dismissed " 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). The district court must construe a pro se plaintiff's complaint liberally under this standard. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972). Nevertheless, the court should not assume the role of advocate, and should dismiss claims which are supported only by vague and conclusory allegations. Hall, 935 F.2d at 1110.

Third, the district court may grant summary judgment under Fed.R.Civ.P. 56(c) "if the pleadings, depositions, answers to interrogatories, and admissions on affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Id. If the district court considers matters outside the pleadings, a 12(b)(6) motion should be treated as a motion for summary judgment, and the opposing party must be given "the notice and an opportunity to respond as provided in Rule 56." Hall, 935 F.2d at 1110-11. The Rule 56(c) provisions for notice and an opportunity to respond with affidavits are mandatory, and " '[n]oncompliance therewith deprives the court of authority to grant summary judgment.' " Id. (quoting Torres v. First State Bank of Sierra County, 550 F.2d 1255, 1257 (10th Cir.1977)).

In this circuit we allow a court authorized report and investigation by prison officials to determine whether a pro se prisoner's allegations have any factual or legal basis. These reports are referred to as Martinez reports. See id. at 1109 (citing Martinez v. Aaron, 570 F.2d 317, 318-19 (10th Cir.1978)). And telephonic evidentiary hearings, such the hearings conducted by the magistrate in this case, may serve the same purpose. Id. (citing Gee v. Estes, 829 F.2d 1005, 1007 (10th Cir.1987)). On summary judgment, a Martinez report is treated like an affidavit, and the court is not authorized to accept its fact findings if the prisoner has presented conflicting evidence. Id. at 1111. This process is designed to aid the court in fleshing out possible legal bases of relief from unartfully drawn pro se prisoner complaints, not to resolve material factual issues. Id. at 1109 (citing El'Amin v. Pearce, 750 F.2d 829, 832 (10th Cir.1984); Sampley v. Ruettgers, 704 F.2d 491, 493 n. 3 (10th Cir.1983)).

II. Disposition

We have reviewed the record and have construed Mr. Northington's complaint liberally as required by Haines, 404 U.S. at 520-21, 92 S.Ct. at 595-96, and we are not troubled with the district court's dismissal of the 42 U.S.C. § 1983 claims against the Denver Sheriff's Department, Deputy Badley, and Captains Rowe and Brennis, nor are we troubled with the dismissal of the § 1985 conspiracy counts. The claim for damages against the Department is based on an "indisputably meritless legal theory," Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833, because the Department is entitled to Eleventh Amendment Immunity. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Dismissal therefore would be proper under 28 U.S.C. § 1915(d). See McKinney v. Oklahoma, 925 F.2d 363, 365-66 (10th Cir.1991).

Regarding Deputy Badley, Mr. Northington alleges that her sale of the pickup truck and the ensuing forgery threats caused him to lose his community corrections status and therefore violated his equal protection and due process rights. It is clear from the face of the complaint, however, that he lost his community corrections status because he left his worksite, travelled to Utah and committed two armed robberies. He is now serving an habitual offender life sentence in the Colorado State Penitentiary as a result of the escape conviction stemming from this incident. Mr. Northington has not alleged any plausible constitutional violation by Deputy Badley in relation to this incident. Dismissal under Rule 12(b)(6) therefore was proper. See Conley v. Gibson, 355 U.S. at 45-46, 78 S.Ct. at 101-02.

Regarding Captains Rowe and Brennis, Jail Supervisors, Mr. Northington has not alleged personal involvement in anything other than the § 1985 conspiracy claims, and we find nothing but vague and conclusory allegations in support of such claims. We therefore hold that dismissal of the § 1985 claims against the supervisors and all of the § 1985 claims was proper under Rule 12(b)(6). See Hall, 935 F.2d at 1110.

Our trouble with this case begins with the district court's treatment of Mr. Northington's claims against Captain Jackson and Sergeant Motley. The complaint and the testimony at the evidentiary hearing reveal the following factual scenario. Captain Jackson served as an internal investigator for the Corrections Department, and he suspected that Deputy Badley was fraternizing with Mr. Northington. He therefore surveilled Mr. Northington as he left the Jail each morning and travelled to his community placement worksite. According to Captain Jackson's testimony, he stopped Mr. Northington one morning because Mr. Northington was not headed toward his worksite on the "south side" of the Denver metropolitan area. Captain Jackson further testified that he drew his service revolver as a standard procedure and, together with Sergeant Motley who arrived soon thereafter, transported Mr. Northington back to the jail and had him telephone Deputy Badley. Mr. Northington's complaint contains a different story,...

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