R. BROOKE JACKSON, District Judge.
Plaintiff, an inmate at the Colorado Department of Corrections, filed this § 1983 suit in December 2010. The Court, by Judge Babcock, dismissed his first claim sua sponte. Plaintiff's remaining claim, set forth in the Complaint as "Claim Two," reads as follows:
Defendants moved to dismiss the second claim pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing that (1) the Court lacked subject matter jurisdiction to review a claim based on violations of the Colorado Constitution; (2) plaintiff had not sufficiently alleged personal participation by defendants Jones and Zavaras; (3) the complaint did not state a plausible denial of access to the courts claim; (4) or a retaliation claim; (5) or a conspiracy claim; and (6) that defendants were entitled to qualified immunity. [docket #28].
The Court, by Judge Blackburn, referred the motion to a magistrate judge. Plaintiff did not respond to the motion or to an order to show cause as to why the magistrate judge should not recommend that the motion to dismiss be granted. On August 11, 2011 Magistrate Judge Hegarty issued an order interpreting plaintiff's second claim as asserting four different claims for relief: (1) a violation of his First Amendment right of access to the courts; (2) a violation of his First Amendment right to be free from retaliation; (3) a Fourteenth Amendment procedural due process claim arising out of the deprivation of his liberty interests pursuant to Art. II, § 3 of the Colorado Constitution; and (4) a violation of 42 U.S.C. § 1983 for civil conspiracy. The magistrate judge concluded that plaintiff had not stated a claim on any of the four theories and recommended that the motion to dismiss be granted.
Plaintiff has objected to all portions of that order. The Court therefore reviews the magistrate judge's recommended disposition de novo. Fed. R. Civ. P. 72(b)(3).
In reviewing a motion to dismiss, the Court must accept the well-pleaded allegations of the complaint as true and construe them in plaintiff's favor. However, the facts alleged must be enough to state a claim for relief that is plausible, not merely speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A plausible claim is a claim that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009). Allegations that are purely conclusory need not be assumed to be true. Id. at 1951.
Because plaintiff represents himself pro se, the Court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
For present purposes the Court accepts the truth of the allegations that Mr. Rueb prepared a complaint under 42 U.S.C. § 1983 asserting misconduct by the Colorado Department of Corrections ("DOC") and/or employees of the DOC; that he took it to his facility's mail room to be mailed to the court for filing; that at the direction of defendants Brown, Burbank and Dent unidentified mail room employees intercepted the package; that some or all of these individuals opened the package and either removed or otherwise altered some of its contents; that they delayed mailing the altered package for six days and then rigged the envelope so that it would not properly contain the contents; that upon arrival at the courthouse the papers were in disarray; and that, as a result of the sabotaging of the original complaint package, Mr. Rueb incurred $100 in extra copying costs to re-duplicate his copy of the papers, and the filing of his lawsuit was delayed by one month.
The question presented by the present case is whether, assuming the truth of those alleged facts, plaintiff's complaint states a claim of a constitutional violation on which relief could be granted. I conclude that it did not.
The essence of Mr. Rueb's claim is that the alleged misconduct unconstitutionally denied Mr. Rueb access to the courts. "It is well settled that prison officials may not unreasonably hamper inmates in gaining access to the courts." Evans v. Moseley, 455 P.2d 1084 (10th Cir. 1972). However, plaintiff "must demonstrate actual injury from interference with his access to the courts — that is, that the prisoner was frustrated or impeded in his efforts to pursue a nonfrivolous legal claim concerning his conviction or his conditions of confinement." Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir. 2010).
The complaint alleges that Mr. Rueb's filing of his underlying complaint was delayed one month by defendants' actions. However, he did not allege that his ability to pursue his claims was in any material respect prevented. It does not, for example, indicate that any applicable statute of limitations expired during the period of delay, or that for any other reasons the delay interfered with his prosecution of the underlying suit. In short, although the defendants' actions, if they occurred, were surely wrong, not to mention juvenile, the complaint does not allege an actual injury other than the extra copying costs. The necessity to incur unnecessary copying costs no doubt would be frustrating, and could possibly support a state court tort claim, but it does not make out a constitutional violation.
In his objection to the magistrate judge's recommendation Mr. Rueb cites Simkins v. Bruce, 406 F.3d 1239 (10
As the magistrate judge recognized, "[p]rison officials may not retaliate against or harass an inmate because of the inmate's exercise of his right of access to the courts." Gee v. 627 F.3d at 1189. To state a claim a plaintiff must allege (1) that he engaged in constitutionally protected activity, (2) but, because of the defendant's actions, he suffered an injury that would "chill a person of ordinary firmness from continuing to engage in that activity," and (3) defendant's action was "substantially motivated as a response" to the exercise of the constitutionally protected activity. Shero v. City of Grove, Okla., 510 F.3d 1196, 1203 (10th Cir. 2007). Whether the retaliatory conduct would have a chilling effect on the defendant's exercise of the protected activity is an objective, not a subjective, determination. Ibid.
Plaintiff alleged that defendants Brown, Burbank and Dent knew, because of internal grievances procedures, that Mr. Rueb was about to file a suit against the DOC, and that they therefore sabotaged his paperwork. I am satisfied that Mr. Rueb has alleged facts that, if proven, would establish the first and third elements of unconstitutional retaliation. He has not, however, alleged that he suffered an injury that would discourage a reasonable person from continuing to engage in the activity. I cannot find that an inmate who is ready, willing and able to file a civil rights lawsuit against prison officers would be intimidated or discouraged by the shenanigans alleged here to the point of deciding not to file the suit. Mr. Rueb's own conduct suggests otherwise. He was not deterred from filing his complaint.
I have considered the authorities cited by Mr. Rueb in his objection to the magistrate judge's recommendation. For example in Smith v. Maschner, 899 F.2d 940 (10th Cir. 1990), the court emphatically reiterated that retaliation against an inmate for filing lawsuits violates his First Amendment rights, including his right of access to the courts. Id. at 947. The inmate claimed that prison officials initiated disciplinary proceedings against him in retaliation for his having filed lawsuits against prison officials. The court found that there was sufficient evidence from which a retaliatory motive could be inferred to avoid a summary judgment of dismissal. Id. at 949. However, that case and other cases cited by Mr. Rueb miss the point at issue here. This Court has found that Mr. Rueb has sufficiently alleged a retaliatory motive. What is missing is evidence of an actual injury of constitutional significance. A one month delay in filing a lawsuit, while unfortunate, is not an injury on the level of disciplinary proceedings (Smith) or having summary judgment granted (Simpkins).
I conclude that Mr. Rueb has not alleged a plausible retaliation claim that can survive a Rule 12 motion.
Plaintiff alleged "a 14
The magistrate judge noted that the Colorado Supreme Court has declined to recognize an implied cause of action to enforce the Colorado Constitution via a § 1983 action. Board of County Commissioners of Douglas County v. Sundheim, 926 P.2d 545, 549 (Colo. 1996). In his objection to the magistrate judge's recommendation, Mr. Rueb argues that the magistrate judge mischaracterized his claim, and that he was not intending to assert a violation of the Colorado Constitution. That is not obvious from the wording of his complaint. Of course, if he were trying to assert a violation of the Colorado Constitution, he would be out of luck. Section 1983 provides a remedy for violations, under color of state law, of the Constitution or the laws of the United States.
I will instead give Mr. Rueb the benefit of the doubt and construe his claim as an assertion that the defendants, acting under color of state law, deprived him of due process as guaranteed by the Fourteenth Amendment. Even so construed, however, the question remains — what liberty or property interest did the defendants deny Mr. Rueb without due process of law?
The only interests or rights he has alleged are his right of access to the courts and his right to be free of retaliation for attempting to exercise his right of access. However, if those rights have not been denied him, as the Court has found, then they cannot have been denied without due process of law.
"Allegations of conspiracy may, indeed, form the basis of a § 1983 claim." Tonkovich v. Kansas Bd. of Regents, 159 F. 504, 533 (10th Cir. 1998). However, a plaintiff "must plead . . . not only a conspiracy, but also an actual deprivation of rights; pleading and proof of one without the other will be insufficient. Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990).
The magistrate judge concluded that Mr. Rueb failed to state a claim of conspiracy on which relief could be granted because (1) his allegations of a conspiracy were conclusory, and (2) he did not plead an actual deprivation of his constitutional rights. Once again giving Mr. Rueb the benefit of the doubt, I am willing to accept the allegation that defendants Brown, Burbank and Dent instructed mailroom personnel to intercept Mr. Rueb's mail, and that they then sabotaged the contents, to be sufficient to allege the existence of a "conspiracy." However, it comes back to his allegation that delaying the filing of a federal court complaint by a month was an unconstitutional denial of his right of access to the courts. Because the Court has concluded that Mr. Rueb did not sufficiently allege an actual deprivation of a right provided by the Constitution or laws of the United States, it follows that he has not alleged a conspiracy that is actionable under § 1983.
For the reasons set forth above, the Court approves and accepts the recommendation of the magistrate judge that the motion to dismiss be granted [#43]. Defendant's motion to dismiss [#28] is GRANTED. The case is dismissed with prejudice. Defendant's motion to vacate the trial preparation conference and jury trial [#63] is thereby rendered MOOT.
