IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02366-BNB

MARTIN ARCADIO SANCHEZ,

Plaintiff,

v.

ROBERT FYLES, Deputy A.C.D.F.,

KYLE WANDERSEE, Nurse A.C.D.F.,

KELLY VOLK, Nurse, A.C.D.F.,

CHERYL GROOTHUIS, Nurse, A.C.D.F.,

MISHA STRONG, Nurse, A.C.D.F.,

MIKE MILLER, Sergeant, A.C.D.F.,

DEP. GARCIA, Deputy, A.C.D.F.,

DR. METCALF, Platt Valley Med Cntr.,

LINDSEY (last name unknown), Classifications A.C.D.F.,

DEP. DUMMAR, Deputy, A.C.D.F., and

DEP. GORSAGE, Deputy, A.C.D.F.,

Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE

TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE

At the time Plaintiff, Martin Arcadio Sanchez, initiated this action he was a

prisoner in the custody of the Adams County Detention Facility (ACDF). Mr. Sanchez

filed a Prisoner Complaint and a Motion and Affidavit for Leave to Proceed Pursuant to

28 U.S.C. § 1915 on September 8, 2011. Mr. Sanchez filed an Amended Complaint on

October 13, 2011. Also on October 13, 2011, Mr. Sanchez filed a letter to the Court

indicating that he had been released from the ACDF. Therefore, Mr. Sanchez was

directed to file a Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. 

§ 1915 on the form used by non-prisoners, which he submitted to the Court on

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November 2, 2011. Mr. Sanchez was granted leave to proceed pursuant to 28 U.S.C. 

§ 1915 on November 8, 2011.

The Court must construe the Amended Complaint liberally because Mr. Sanchez

is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If a complaint reasonably can be read

“to state a valid claim on which the plaintiff could prevail, [a court] should do so despite

the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories,

his poor syntax and sentence construction, or his unfamiliarity with pleading

requirements.” Hall, 935 F.2d at 1110. However, a court should not act as a pro se

litigant’s advocate. See id. For the reasons stated below, the Amended Complaint and

the action will be dismissed in part and drawn in part.

Mr. Sanchez asserts three claims. In Claim One, Mr. Sanchez alleges that on

January 6, 2011, he was assaulted by Defendant Fyles at the ACDF. He asserts that

Defendant Fyles slammed him to the ground, punched him in the lower spine, and also

kneed him in the face, head, neck and mouth. He alleges that Defendant Wandersee

witnessed the assault, but failed to protect him or report the assault. He also alleges

that Defendant Strong attempted to cover up the assault by wiping blood from his face

before taking pictures of him. Mr. Sanchez further asserts that Defendants Volk and

Groothuis refused to report the assault and did not provide him with the proper medical

attention. Finally, Mr. Sanchez asserts that when Defendants Dummar and Gorsage

escorted him back to his cell, they denied his requests for grievance forms, telling him

that his grievance would “go nowhere” because he was to be released in the morning. 

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Liberally construing his claim, it appears that Mr. Sanchez asserts that his Eighth

Amendment right to be free from cruel and unusual punishment has been violated.

In Claim Two, Mr. Sanchez alleges that after he was released from the ACDF, he

went to the Platte Valley Medical Emergency Center and reported that he had been

assaulted by Deputy Fyles. Mr. Sanchez was treated by Dr. Metcalf, who gave him a

cat scan in addition to a prescription for pain medication. Mr. Sanchez complains that

Dr. Metcalf failed to take a statement from him regarding the assault and also failed to

report the assault to the local police department.

In Claim Three, Mr. Sanchez alleges that he returned to ACDF on March 11,

2011. At the time he was booked in, he asked Defendant Garcia to segregate him from

Defendant Fyles based on their history. Defendant Garcia notified Defendant Miller

about Mr. Sanchez’s request, but then Defendant Garcia told Mr. Sanchez that “it was

up to classifications to choose [his] housing.” Amended Complaint at 14. On March 14,

2011, Mr. Sanchez spoke with Defendant Lindsey in classifications and again requested

a housing assignment in an area apart from Defendant Fyles. However, also on March

14, 2011, Mr. Sanchez alleges that he was placed in a module with Defendant Fyles. 

He asserts that from March to June of 2011, he witnessed Defendant Fyles assault

other inmates and that he was intimidated, harassed, verbally assaulted, and placed

under stress by Defendant Fyles. He further alleges that when he was moved to a

different module in June, Deputies Benson, Born, and Eckhart, who are not named

parties to this action, also verbally assaulted and harassed him. Finally, he asserts that

Defendant Benson wrongfully confiscated canteen items worth $50.00 from him. Mr.

Sanchez requests damages as relief.

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Claim One will be drawn to a district judge and to a magistrate judge.

As for Claim Two, Mr. Sanchez complains that Defendant Doctor Metcalf failed

follow a Platte Valley Medical Center procedure when the Defendant refused to contact

the local police department after Mr. Sanchez reported that he had been assaulted. 

Section 1983 creates a cause of action where a “person . . . under color of any statute,

ordinance, regulation, custom or usage, of any State . . . subjects, or causes to be

subjected, any citizen of the United States or other person . . . to the deprivation of any

rights, privileges or immunities secured by the Constitution.” 42 U.S.C. § 1983. Section

1983 does not create any substantive rights; rather, it creates only a remedy for

violations of rights secured by federal statutory and constitutional law. See Chapman

v. Houston Welfare Rights Org., 441 U.S. 600, 616-18 (1979); see also Southern

Disposal, Inc. v. Texas Waste Management, 161 F.3d 1259, 1265 (10th Cir. 1998)

(holding “[i]n order to successfully state a cause of action under section 1983, [the

plaintiff] must allege . . . the deprivation of a federal right . . . .”) (internal quotation

marks and ciattion omitted). In his second claim, Mr. Sanchez does not assert that

Defendant Metcalf’s failure to follow hospital procedure resulted in a violation of his

constitutional rights under federal law. Further, it is not clear what injury, if any, Mr.

Sanchez suffered as a result of Defendant Metcalf’s actions. Without more, Claim Two

lacks merit and it will be dismissed as legally frivolous.

As for Claim Three, Mr. Sanchez appears to allege that his Eighth Amendment

rights were violated because Defendants Garcia, Miller, and Lindsey failed to “properly

segregate” him from Defendant Fyles after Mr. Sanchez returned to ACDF in March. A

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prisoner claiming that he has been subjected to cruel and unusual punishment based on

an official’s failure to protect must show that (1) the alleged deprivation is objectively,

“sufficiently serious,” meaning the inmate “is incarcerated under conditions posing a

substantial risk of serious harm,” and (2) the prison official acted with “deliberate

indifference,” meaning the official knew of and disregarded an excessive risk to the

inmate’s safety. Farmer v. Brennan, 511 U.S. 825, 833 (1994).

However, Mr. Sanchez does not demonstrate that in March of 2011 he was

“incarcerated under conditions posing a substantial risk of serious harm.” Id. Although

he asserts that Defendant Fyles verbally assaulted him and harassed him, this does not

state a claim of a constitutional violation. Verbal harassment and threats without more

do not state an arguable constitutional claim. See Northington v. Jackson, 973 F.2d

1518, 1524 (10th Cir. 1992); Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982)

(per curiam); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (per curiam). Mr.

Sanchez does not assert that he was physically assaulted by Defendant Fyles in the

time period of March 2011 to June 2011.

Also, with respect to Mr. Sanchez’s property claim, where he asserts that Deputy

Benson confiscated canteen items from him, an unauthorized intentional deprivation of

property by state officials does not violate the Due Process Clause if a meaningful

postdeprivation remedy for the loss is available. See Hudson v. Palmer, 468 U.S. 517,

533 (1984); Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989) (per curiam). Mr.

Sanchez fails to allege that a meaningful postdeprivation remedy was unavailable. 

Claim Three, therefore, lacks merit and will be dismissed as legally frivolous.

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Accordingly, it is

ORDERED that Defendants Mike Miller, Dep. Garcia, Dr. Metcalf, and Lindsey,

and the claims asserted against them, are dismissed from the action pursuant to 28

U.S.C. § 1915(e)(2)(b)(i). It is

FURTHER ORDERED that the Clerk of the Court shall remove Defendants Mike

Miller, Dep. Garcia, Dr. Metcalf, and Lindsey from the docketing record as parties to this

action. It is

FURTHER ORDERED that Claim One, which is asserted against Defendants

Robert Fyles, Kyle Wandersee, Kelly Volk, Cheryl Groothuis, Misha Strong, Dep.

Dummar, and Dep. Gorsage, shall be drawn to a district judge and to a magistrate

judge. 

DATED at Denver, Colorado, this 28th day of November , 2011.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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