Meadows v. Salazar ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 25, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
ANDY MEADOWS,
Plaintiff - Appellant,
v. No. 19-1104
(D.C. No. 1:18-CV-03290-LTB)
DANNY SALAZAR; CORRECTIONAL (D. Colo.)
COUNSELOR ORTIZ; MAJOR
PALAMINO (SECURITY MAJOR);
INVESTIGATOR BROWN; SHIFT
COMMANDER GONZALEZ; WARDEN
GOODRICH; COLORADO
DEPARTMENT OF CORRECTIONS,
Defendants - Appellees.
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ORDER AND JUDGMENT*
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Before McHUGH, KELLY, and MORITZ, Circuit Judges.**
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Plaintiff-Appellant Andy Meadows, an inmate appearing pro se, appeals from the
district court’s dismissal of his civil rights complaint and action. The district court
*
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument.
denied Mr. Meadows leave to proceed in forma pauperis (IFP) on appeal finding that he
had no non-frivolous argument to raise on appeal and thus could not appeal in good faith.
28 U.S.C. § 1915(a)(3). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm and
deny his motion to proceed IFP on appeal.
Background
Mr. Meadows, a Colorado state prisoner, initiated this 42 U.S.C. § 1983 action
against numerous Bent County Correctional Facility (BCCF) officials and the Colorado
Department of Corrections, alleging deliberate indifference and cruel and unusual
punishment in violation of his Eighth Amendment rights. See generally Compl. (1 Rawle 4).
His complaint alleged someone posted an anonymous letter that had complained of other
prisoners’ loud music. BCCF officials retrieved the letter after one-and-a-half weeks, but
they placed it back on display after one official, Unit Manager Danny Salazar, wrote on it
that “there is nothing I can do about it, so, you will have to handle it like men within the
Pod.” Id. at 8. According to the complaint, the official’s comment all but encouraged
retaliation against the anonymous author of the letter. Id. at 9. A group of 30 to 50
prisoners allegedly compared the letter’s handwriting to that of Mr. Meadows and
determined he was the anonymous author. Id. The prisoners then took “an aggressive
stance . . . [d]irected at [Mr. Meadows].” Id.
Two months later, Mr. Meadows filed an amended complaint in which he added
the group of prisoners consisted of between 50 and 70 “Hispanic and Mexicans,” and that
their “aggressive stance” gave him extreme emotional stress and led him to believe his
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life was in danger. Id. at 32. It further added an allegation that Mr. Meadows’s housing
area was placed on lockdown following the confrontation. Id. It sought declaratory
judgment and compensatory and punitive damages against the BCCF officials in their
individual and official capacities and the Colorado Department of Corrections (CDOC)
for his alleged emotional distress, their reckless disregard of his safety, and their failure
to provide proper training and sanctions to those who fail to provide a safe environment.
Id. at 30, 33–35.
On February 22, 2019, the district court dismissed the action pursuant to 42 U.S.C.
§ 1915(e)(2)(B)(i) & (iii), holding the action was frivolous and that it sought monetary
relief against defendants immune from such relief. Id. at 39. The court first dismissed as
moot Mr. Meadows’s request for declaratory relief because he was no longer incarcerated
at BCCF. Id. at 41. It then construed Mr. Meadows’s official-capacity claims against
BCCF officials as claims against the CDOC and Colorado, which have Eleventh
Amendment immunity. Id. Turning to Mr. Meadows’s individual-capacity claims
against BCCF officials other than Unit Manager Salazar, the court held Mr. Meadows
failed to allege the personal participation of other BCCF officials. Id. at 42. Because the
theory of respondeat superior cannot extend liability for the unconstitutional conduct of a
subordinate, the district court dismissed these claims. Id. at 42–43. As to Mr.
Meadows’s claim against Unit Manager Salazar, the district court held the second
amended complaint failed to allege facts supporting either that Mr. Meadows suffered a
sufficiently serious injury absent a showing of physical injury, or that Unit Manager
Salazar acted with deliberate indifference. Id. at 43–45. Finally, it certified that any
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appeal from its order would not be taken in good faith and denied IFP status for the
purposes of appeal. Id. at 45; 28 U.S.C. § 1915(a)(3). Mr. Meadows filed a timely notice
of appeal on March 21, 2019. 1 Rawle 47.
Discussion
Whether Mr. Meadows has stated a cognizable § 1983 claim is purely a question
of law and one we review de novo. See Christiansen v. City of Tulsa, 332 F.3d 1270,
1278 (10th Cir. 2003). Our consideration of a renewed IFP motion on appeal is not a
review of the district court’s decision, but rather a de novo consideration. Boling-Bey v.
U.S. Parole Comm’n, 559 F.3d 1149, 1154 (10th Cir. 2009).
We affirm for substantially the same reasons given by the district court. Although
Mr. Meadows filed his motion to proceed IFP on appeal more than 30 days after service
of notice of the district court’s order, Fed. R. App. P. 24(a)(5), we accept his motion as
timely. See White v. Gregory, 87 F.3d 429, 430 (10th Cir. 1996); Hutchinson v. Milyard,
423 F. App’x 806, 808 n.4 (10th Cir. 2011) (unpublished). But because he has “failed to
show the existence of a reasoned, nonfrivolous argument on the law and facts in support
of the issues raised on appeal,” we deny it. Rolland v. Primesource Staffing, L.L.C., 497
F.3d 1077, 1079 (10th Cir. 2007).
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AFFIRMED. Mr. Meadows’s motion to proceed IFP on appeal is DENIED and
he is reminded that he is responsible for immediate payment of the full amount of the
filing fee.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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