Pettigrew v. Executive Dir. Aristedes Zavares
| Decision Date | 19 May 2011 |
| Docket Number | Civil Action No. 11-cv-00367-BNB |
| Parties | RYAN ALEXANDER PETTIGREW,Plaintiff, v. EXECUTIVE DIRECTOR ARISTEDES ZAVARES [sic], WARDEN SUSAN JONES, WARDEN LARRY REED, INTELLIGENCE OFFICER SGT. DENT, INTELLIGENCE OFFICER SGT. SANDRA CROSS, CORRECTIONAL OFFICER LT. DANIEL STRAWN, FOOD SERVICE AND LAUNDRY PROGRAMS MANAGER DONA ZAVISLAN, GRIEVANCE OFFICER ANTHONY A. DeCESARO, PROGRAMS MAJOR MACAIN HILDEBRAND, PROGRAMS SUPERVISOR MARY McCORMICK, REGIONAL COORDINATOR FAITH AND CITIZENS PROGRAMS DARRYL PROFFIT, CASE MANAGER JOHN DOE, CASE MANAGER CHAVEZ, CASE MANAGER KYLE BUFFUM, PAROLE BOARD MEMBER DEBORAH C. ALLEN, PAROLE BOARD VICE CHAIR BECKY R. LUCERO, PAROLE BOARD MEMBER CELESTE M. C. de BACA, PAROLE BOARD MEMBER MICKEY HECKENBACH, PAROLE BOARD MEMBER LESLEE v. WAGGENER, PAROLE BARD CHAIRMAN DAVID L. MICHAUD, and HEARINGS OFFICER DALE BURKE, In their Individual and Official Capacities,Defendants. |
| Court | U.S. District Court — District of Colorado |
ORDER TO DISMISS IN PART AND TO DRAW CASE
TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE
Plaintiff, Ryan Alexander Pettigrew, is a prisoner in the custody of the Colorado Department of Corrections ("DOC"). He is incarcerated at the Centennial Correctional Facility (CCF) in Canon City, Colorado. Mr. Pettigrew initiated this action by filing aPrisoner Complaint on February 11, 2011 asserting a cause of action under 42 U.S.C. § 1983 for alleged violations of his constitutional rights. He also asserts claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1 (2000). Mr. Pettigrew has been granted leave to proceed in forma pauperis.
On April 6, 2011, Magistrate Judge Boyd N. Boland determined that the complaint was deficient because it failed to allege the personal participation of all named Defendants and asserted a substantive due process claim that was legally without merit. Accordingly, Magistrate Judge Boland directed Plaintiff to file an amended prisoner complaint within thirty days. The April 6 Order warned Mr. Pettigrew that if he failed to file an amended complaint, certain Defendants would be dismissed without further notice. Mr. Pettigrew did not file an amended complaint within the time allowed. Instead, he filed an Objection to Magistrate Judge Boland's April 6 Order (Doc. No. 9). Mr. Pettigrew's specific objections are discussed below.
The Court has construed the Complaint liberally because Mr. Pettigrew is not represented by an attorney. See Haines v. Keener, 404 U.S. 519, 520-21 (1972); Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court does not act as an advocate for prose litigants. See Hall, 935 F.2d at 1110.
Pursuant to 28 U.S.C. § 1915A, the Court is required to review the amended complaint because Mr. Pettigrew is a prisoner and some of the Defendants are officers or employees of a governmental entity. Pursuant to § 1915A(b)(1), the Court is required to dismiss the complaint, or any portion of the complaint, that is frivolous. A legallyfrivolous 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 Nusku v. Williams, 490 U.S. 319, 324 (1989).
Mr. Pettigrew asserts seven claims for relief in his Complaint. First, he claims that his substantive due process rights were violated when his applications for parole and community corrections placement were denied based on false information in his prison file about his state criminal charges. Second, he claims that he was denied access to adequate mental health care by Defendants Dent, Cross, Jones and Reed, who refused to assign him to a mental health program because of his gang status and instead placed him in administration segregation (ad-seg), on 23-hour-a-day lock-down, for a period of approximately five years, which exacerbated his bipolar disorder. He further claims that his long-term confinement in ad-seg may have resulted in a vitamin D deficiency. In claims three and four, Plaintiff asserts that his First Amendment Free Exercise rights were infringed and his rights under the RLUIPA were violated when Defendants Strawn, Zavislan, DeCesaro, Hildebrand, McCormick, and Proffit refused to accommodate his sincere religious needs to celebrate Passover and the Pentecost in his cell and to maintain a religious diet during those holidays. Mr. Pettigrew asserts in claim five that Defendants' conduct in denying Christian Identity inmates a religious diet, while providing a religious diet to Jewish inmates for Passover and allowing Catholic inmates to take individual Communion during Lent, violates the Fourteenth Amendment Equal Protection Clause. In claim six, Plaintiff challenges CCF's two-book per cell limit for inmates classified below a level five as violative of the RLUIPA. For his seventhclaim, Mr. Pettigrew asserts that his Fourteenth Amendment right not to be deprived of property without due process of law was violated when Defendant Burke, a disciplinary hearing officer, ordered him to pay restitution in the amount of $3.60 for a spit mask used while transferring Plaintiff to intake following a DHO hearing. Mr. Pettigrew asserts that the DOC has no statutory authority to remove monies from his prison trust fund account pursuant to an internal restitution order. Plaintiff seeks injunctive and monetary relief from the Defendants.
Magistrate Judge Boland warned Mr. Pettigrew in the April 6 Order that personal participation by the named defendants is an essential allegation in a civil rights action. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). Mr. Pettigrew must therefore show that each named Defendant caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). Mr. Pettigrew was advised that a supervisor, such as Defendant Zavaras, cannot be held liable under § 1983 merely because of his supervisory position. See Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986); McKee v. Heggy, 703 F.2d 479, 483 (10th Cir. 1983). Instead, a supervisor is only liable for a constitutional or statutory violation that he or she has caused. See Dodds v. Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010). Accordingly, there must be an affirmative link between the alleged constitutional or statutory violation and each Defendant's participation, control or direction, or failure to supervise. See Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993); see also Richardson, 614 F.3d at 1200-1201 () (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)).
Mr. Pettigrew alleges in his Objection to the April 6 Order that Defendant Zavaras enacted the administrative regulations that Plaintiff is challenging in claims two, six and seven as unconstitutional or as violative of the RLUIPA. Construing Plaintiffs filings liberally and together, the Court finds that he has alleged enough to show the personal participation of Defendant Zavaras in an alleged constitutional violation, which is actionable under 42 U.S.C. § 1983.
With regard to Defendant Proffit, the Court, upon reconsideration, finds that Plaintiff has alleged sufficient facts in his Complaint to show the personal participation of Defendant Proffit in an alleged deprivation of Mr. Pettigrew's First Amendment rights. Under the First and Fourteenth Amendments, inmates are entitled to the reasonable opportunity to pursue their sincerely-held religious beliefs. See Makin v. Colo. Dep't. of Corr., 183 F.3d 1205, 1209 (10th Cir. 1999). Plaintiff alleges that Defendant Proffit is the Regional Coordinator of Faith and Citizens Programs. Mr. Pettigrew states that he submitted his complaint about not being able to celebrate Passover and the Pentecost to Defendant Proffit, who responded that he would try to find an outside faith group advisor to address Plaintiff's concerns, but until then, the prison would maintain current practices. Because Proffit has the authority to respond to the specific constitutional concern raised by Plaintiff, but did not take any action, the Court finds that Plaintiff has arguably alleged Defendant's personal participation in the alleged constitutionaldeprivation. Defendant Proffit therefore will not be dismissed at this time. By contrast, Mr. Pettigrew's allegations against Defendant DeCesaro fail to allege the Defendant's personal participation. Defendant DeCesaro is a Step III grievance officer. His only involvement in the alleged constitutional deprivations was to deny Plaintiffs Step III grievances. That is not sufficient to hold Defendant DeCesaro liable under 42 U.S.C. § 1983. "[A] denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983." Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009); see also Whitington v. Ortiz, 307 Fed. App'x. 179, 193 (10th Cir. 2009) (unpublished)( § 1983 claim against defendant who denied grievance where "[t]here is no allegation that [defendant] had any authority with respect to official CDOC policy or that he personally participated in any of the deprivations that led [plaintiff] to file the grievance in the first place]"). Plaintiff alleges in his Objection to the April 6 Order that Defendant DeCesaro had the authority to grant his grievance, but refused to do so. However, Plaintiff does not allege any specific facts to show that Defendant DeCesaro has the authority to make policy concerning religious matters at the prison, as opposed to executing policy made by others. Defendant DeCesaro is therefore an improper party to this action and will be dismissed.
Mr. Pettigrew's claims against Defendants...
To continue reading
Request your trial