Marco A. ROCHA, Plaintiff-Appellant, v. A. ZAVARAS, CDOC Director; Ron Leyba, FMCC Warden; Lt. Potter, FMCC; Sgt. Stevens, FMCC; Other Unnamed Defendants Under their Official and Individual Capacities, Defendants-Appellees.
No. 11-1132.
United States Court of Appeals, Tenth Circuit.
Sept. 26, 2011.
316-320
Chris Alber, Office of the Attorney General fоr the State of Colorado, Denver, CO, for Defendants-Appellees.
Before KELLY, HARTZ, and HOLMES, Circuit Judges.*
ORDER AND JUDGMENT**
PAUL KELLY, JR., Circuit Judge.
Marco Rocha, a state inmate appearing pro se, appeals from the district court‘s
The parties are familiar with the facts, and we need not restate them here. Briefly, Mr. Rocha alleges that, in June of 2008, he was given a “Low Work Evaluation” and ultimately placed on “Restricted Privilege” (RP) status in retaliation for informal complaints he made about kitchen staff. R. 8. He further alleges that, while on RP status, offenders are restricted to standard recreation activities, maintained in segregated housing, called last to eat, restricted from certain purchases from the canteen, prohibited from communicating with other inmates, and required to wear distinct identifying clothing (specifically, orange pants, rather than green pants). R. 7-8. Mr. Rocha claims that, due to the prohibition on communication, he was injured during a work project, requiring eight stitches and additional bandages. R. 8. Mr. Rocha allegedly filed an initial grievance five days later regarding the safety of the working conditions, and this case followеd. R. 8.
Mr. Rocha‘s initial complaint sought injunctive relief and damages against all four Defendants in their official and individual capacities, and contained as many as five claims: (1) violation of his First Amendment rights by way оf retaliation for his informal complaints and the complete prohibition on his speech while on RP status;1 (2) violation of his Eighth Amendment right by way of two conditions of confinement, including mental anguish resulting from plaсement on RP status and risk of serious physical harm resulting from his working conditions while on RP status; (3) violation of the Equal Protection Clause by way of class-based differential treatment and/or “class-of-one” disparаte treatment; (4) violation of the Due Process Clause by way of denial of a hearing prior to placement on RP status;2 and (5) violations of Colorado statutes and a
Mr. Rocha identifies two issues on appeal, alleging that (1) the lower court erred “by evaluating [his] claims under post hoc rationale” and advocating as defendants’ attorney, and (2) the “lower court‘s performance under said post hoc rationale shifts from erroneоus review to abdication of function in administration of justice.” Aplt. Br. 3. He also contends that the district court should have applied the law identified in his pleadings to support his claimed constitutional violаtions.
The first two issues are one in the same: we find nothing to suggest that the district court did anything other than discuss various claims generally and evaluate the defenses raised by defendants. Mr. Rocha tells us on appeal that the case does not involve claims of deliberate indifference to serious medical needs, or excessive force, but rather involves retaliation, his status as a protected class of one, and deliberate indifference to a substantial risk of serious harm given the policy which restricts communication between inmates. Aplt. Br. 2. Mr. Rocha therefore has abandoned the remаinder of his original claims. Kokins v. Teleflex, Inc., 621 F.3d 1290, 1302 n. 6 (10th Cir.2010).
Our review of
First, in the context of First Amendment rеtaliation claims, a specific test “applies to retaliation claims in which the defendant ‘is not the plaintiff‘s employer and when there is no contractual relationship between them.‘” Leverington v. City of Colorado Springs, 643 F.3d 719, 729 (10th Cir.2011) (quoting Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000)). Under that test, Mr. Rocha must prove: “(1) that [he] was engaged in constitutionally protected activity; (2) that [each] defendant‘s actions caused [him] to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that [each] defendant‘s adverse action was substantial-
Second, in order to establish a class-of-one equal protection claim, Mr. Rocha must allege that he “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). To do this, Mr. Rocha “must establish that others, ‘similarly situated in every material respect[,]’ were treated differently.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir.2011) (quoting Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1210 (10th Cir. 2006)). Mr. Rocha “must then show this difference in treatment was without rational basis, that is, the government action was ‘irrational and abusive’ and ‘wholly unrelated to any legitimate state activity.‘” Id. (quoting Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836, 849 (10th Cir. 2005)) (citation omitted). Whether Mr. Rocha satisfies the second element is irrelevant, as he fails to plead the first: though he alleges that he was singled out for exercising his constitutional right(s), Mr. Rocha fails to identify anyone, similarly situated, who was treated differently. R. 9, 11, 14, 16. Thus, Mr. Rocha has failed to adequately state a class-of-one equal protection claim.
Third, while there is no doubt that “[a] prison official‘s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment,” Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), Mr. Rocha‘s Eighth Amendment claim still must satisfy two requirements. “First, the deprivation alleged must be, objectively, ‘sufficiently serious.‘” Id. at 834, 114 S.Ct. 1970 (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). Second, “a prison official must have a ‘sufficiently culpable state of mind.‘” Id. (quoting Wilson, 501 U.S. at 298, 111 S.Ct. 2321). This second requirement is subjective, rather than objective: “a рrison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837, 114 S.Ct. 1970. We will assume that Mr. Rocha has adequately allegеd the first requirement; that inmates at his facility, himself included, are made to work in potentially dangerous conditions without the ability to warn others of immediate peril. Even then, Mr. Rocha has failed to allege adequately the second requirement: that the named Defendants subjectively knew of, and disregarded, a risk. Instead, Mr. Rocha simply recites the second element itself: that the Defendants could have drawn, should have drawn, and did draw the inference that the conditions of his RP status were unsafe.
Finally, we note that the district court was correct in denying Mr. Rocha leave to amend his claim: his proposed additions of the Colorado Department of Corrections and the Fоur Mile Correctional Center are barred under the Eleventh Amendment, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir.1988), and his claims against all Defendants in their individual capacities fail for the reasons explained above. We agree with thе district court, in light of the Record, that Mr. Rocha‘s proposed amendments are futile.
AFFIRMED. We grant IFP status and remind Mr. Rocha of his obligation to make partial payments until the filing fee is paid.