Case 2:18-cv-00667-JB-KRS Document 33 Filed 03/28/19 Page 1 of 23
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF NEW MEXICO
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`Plaintiff,
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` No. CIV 18-0667 JB\KRS
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`CARNELL HUNNICUTT,
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`vs.
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`DESTINEE MOORE; RAYMOND SMITH;
`GEO CORP.; LCCF; M. VALERIANO;
`STACEY BEAIRD; KATHERINE BRODIE;
`P. VALDEZ; T. FOSTER, and GERMAN
`FRANCO,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND
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`THIS MATTER comes before the Court, under 28 U.S.C. § 1915A, on the Plaintiff’s
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`Complaint (Tort), filed in the County of Lea, Fifth Judicial District Court, State of New Mexico
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`December 21, 2017, filed in federal court July 12, 2018 (Doc. 1-1)(“Complaint”), and the
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`Plaintiff’s Motion in Opposition for Removal of Civil Action, filed August 9, 2018
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`(Doc. 6)(“Motion to Remand”). Defendant The GEO Group, Inc., removed the case to the Court
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`on July 12, 2018. See Notice of Removal, filed July 12, 2018 (Doc. 1). The Court dismisses
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`Plaintiff Carnell Hunnicutt’s copyright and prison grievance claims in the Complaint, and
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`concludes that Hunnicutt has stated a 42 U.S.C. § 1983 claim against Defendants Destinee Moore,
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`Raymond Smith, Stacey Beaird, and Katherine Brodie for violation of his First Amendment to the
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`Constitution of the United States of America rights. With federal claims remaining, the Court will
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`not remand the case and, thus, the Court denies the Motion to Remand.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`Hunnicutt filed his Complaint in the County of Lea, Fifth Judicial District Court, State of
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`New Mexico, on December 21, 2017. See Complaint at 1. The Complaint states that the “Fifth
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`Judicial District Court has jurisdiction in Tort actions pursuant to the New Mexico Tort Claims
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`Act N.M.S.A. Chapter 41.” Complaint ¶ 2, at 1. The Complaint describes the nature of this action
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`as “Copyright infringement, censorship, interference with outgoing mail, retaliatory punishment,
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`negligence and infractions for criticizing prison conditions and personnel in outgoing
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`correspondence.” Complaint ¶ 1(a), at 1. Hunnicutt further alleges that the Defendants “blame
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`the Plaintiff for exercising his First Amendment Rights pertaining
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`to his outgoing
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`correspondence.” Complaint ¶ 5, at 2. Last, Hunnicutt avers that “[a]ll of my allegations are based
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`on the copyright protection and the Defendants knowing and intentional arrogation of power and
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`violating New Mexico Corrections Department Regulations and NMSA 1978, 33-1-6 and 33-2-
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`10.” Complaint ¶ 11, at 4.
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`The GEO Group removed the case from state court to the Court on July 12, 2018. See
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`Notice of Removal at 1. The GEO Group states that “[t]he Complaint is subject to the jurisdiction
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`of this Court pursuant to 28 U.S.C. § 1331 because Plaintiff asserts claims for copyright
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`infringement pursuant to the Copyright Act of 1976 [and] . . . pursuant to 42 U.S.C. § 1983 for
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`violation of Plaintiff’s First Amendment rights.” Notice of Removal ¶ 5, at 2 (citations omitted).
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`The Geo Group filed its Answer. See Defendant The GEO Group, Inc.’s Answer to Plaintiff’s
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`Complaint, filed July 13, 2018 (Doc. 2)(“Answer”).  
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`Hunnicutt filed the Motion to Remand, in which Hunnicutt moves to remand the case to
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`state court. See Motion to Remand ¶ 6, at 1. Hunnicutt does not dispute that he asserts federal
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`copyright and civil rights claims, but argues that the Court should remand this case, because his
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`state law claims “substantially predominate[]” over the federal claims. Motion to Remand ¶ 5, at
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`1. Defendants The GEO Group, M. Valeriano, Brodie, and P. Valdez respond in opposition to the
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`case’s remand. See Defendants Geo, Valeriano, Brodie and Valdez’ Response in Opposition to
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`Plaintiff’s Motion in Opposition for Removal of Civil Act (Doc. 6), filed August 16, 2018
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`(Doc. 10)(“Response”).
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`PENDING MOTIONS
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`The GEO Group also sought a protective order, requesting the Court to relieve it of the
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`obligation to respond to Hunnicutt’s discovery until the Court completes its preliminary review of
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`the case. See The GEO Defendants’ Motion for Protective Order ¶ 8, at 2, filed September 14,
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`2018 (Doc. 12)(“Protective Order Motion”). Hunnicutt did not respond to the Protective Order
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`Motion but, instead, filed Plaintiff’s Motion to Request Discovery from the Defendants’ [sic], filed
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`September 28, 2018 (Doc. 13)(“Discovery Motion”), seeking to compel the Defendants to respond
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`to discovery requests. See generally, Discovery Motion. Pending before the Court are the
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`Protective Order Motion, the Discovery Motion, The GEO Defendants’ Motion for Summary
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`Judgment and Memorandum of Law in Support, filed October 12, 2018 (Doc. 16), Plaintiff’s
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`Motion that Defendants’ Motion for Summary Judgment be Denied or Stayed Until Plaintiff had
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`Sufficient Opportunity to Obtain the Necessary Facts, and the Court’s Initial Review is Completed,
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`filed November 29, 2018 (Doc. 20), and the Plaintiff’s Motion for Extension of Time to Respond
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`to GEO Defendants Motion for Summary Judgment and Memorandum of Law in Support, filed
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`January 22, 2019 (Doc. 29). Under 28 U.S.C. § 1915A, the Court is obligated to conduct an initial
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`screening of Hunnicutt’s Complaint. In this Memorandum Opinion and Order, the Court conducts
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`an initial screening of Hunnicutt’s Complaint, and denies the Motion to Remand. The rest of the
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`motions remain pending for later decision.
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`THE LAW GOVERNING § 1915A REVIEW AND FAILURE TO STATE A CLAIM
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`Under the Prison Litigation Reform Act, 42 U.S.C. § 1997(e), the court is obligated to
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`preliminarily screen the Complaint. See 28 U.S.C. § 1915A. Whenever a prisoner brings a civil
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`action against government officials, the Court must screen the prisoner’s complaint or petition. 28
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`U.S.C. § 1915A. Section 1915A states:
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`The court shall review, before docketing, if feasible or, in any event, as soon
`as practicable after docketing, a complaint in a civil action in which a prisoner seeks
`redress from a governmental entity or officer or employee of a governmental entity.
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`. . . .
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`On review, the court shall identify cognizable claims or dismiss the
`complaint, or any portion of the complaint, if the complaint --
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`(1) is frivolous, malicious, or fails to state a claim upon which relief
`may be granted; or
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`(2) seeks monetary relief from a defendant who is immune from
`such relief.
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`28 U.S.C. § 1915A(a)-(b).
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`In conducting the § 1915A review, the court has the discretion to dismiss a pro se complaint
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`sua sponte for failure to state a claim upon which relief may be granted under rule 12(b)(6) of the
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`Federal Rules of Civil Procedure. See 28 U.S.C. § 1915A(b)(1). Under rule 12(b)(6), the court
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`must accept all well-pled factual allegations, but not conclusory, unsupported allegations, and may
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`not consider matters outside the pleading. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
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`(2007); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989). The court may dismiss a complaint
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`under rule 12(b)(6) for failure to state a claim if “it is ‘patently obvious’ that the plaintiff could not
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`prevail on the facts alleged.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991)(quoting
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`McKinney v. Okla. Dep’t of Human Servs., 925 F.2d 363, 365 (10th Cir. 1991)). A plaintiff must
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`allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
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`Twombly, 550 U.S. at 570. A claim should be dismissed where it is legally or factually insufficient
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`to state a plausible claim for relief. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570.
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`In reviewing a pro se complaint, the court liberally construes the factual allegations. See
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`Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). The same legal standards that
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`apply to all litigants, however, judge a pro se plaintiff’s pleadings, and a pro se plaintiff must abide
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`by the court’s applicable rules. See Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).
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`The court is not obligated to craft legal theories for the plaintiff or to supply factual allegations to
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`support the plaintiff’s claims. Nor may the court assume the advocate’s role for the pro se litigant.
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`See Hall v. Bellmon, 935 F.2d at 1110.
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`THE LAW GOVERNING CIVIL RIGHTS CLAIMS UNDER 42 U.S.C. § 1983
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`Section 1983 is the exclusive vehicle for vindication of substantive rights under the
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`Constitution of the United States of America. See Albright v. Oliver, 510 U.S. 266, 271
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`(1994)(holding that § 1983 creates no substantive rights; rather it is the means through which a
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`plaintiff may seek redress for deprivations of rights that the Constitution establishes); Baker v.
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`McCollan, 443 U.S. 137, 144 n.3 (1979); Bolden v. City of Topeka, 441 F.3d 1129, 1136 (10th
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`Cir. 2006). Section 1983 provides:
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`Every person who, under color of any statute, ordinance, regulation,
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`custom, or usage of any State . . . subjects or causes to be subjected, any citizen of
`the United States . . . to the deprivation of any rights, privileges, or immunities
`secured by the Constitution and laws, shall be liable to the party injured in an action
`at law . . . .
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`42 U.S.C. § 1983.
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`The State is not a “person” within the meaning of 42 U.S.C. § 1983, and, therefore, there
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`is no remedy against the State under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 63-
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`64 (1989). Section 1983 is a “remedial vehicle for raising claims based on the violation of
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`constitutional rights.” Brown v. Buhman, 822 F.3d 1151, 1161 n.9 (10th Cir. 2016). It does not
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`abrogate the States’ sovereign immunity, and the States, their agencies, and their officials sued
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`solely in their official capacity do not qualify as “persons” under § 1983. See Will v. Mich. Dep’t
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`of State Police, 491 U.S. at 67, 71; Wood v. Milyard, 414 F. App’x 103, 105 (10th Cir.
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`2011)(unpublished).1
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`1Wood v. Milyard is an unpublished opinion, but the Court can rely on an unpublished
`opinion for the United States Court of Appeals for the Tenth Circuit to the extent its reasoned
`analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A) (“Unpublished opinions are
`not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated: “In
`this circuit, unpublished orders are not binding precedent, . . . and . . . citation to unpublished
`opinions is not favored. However, if an unpublished opinion . . . has persuasive value with respect
`to a material issue in a case and would assist the court in its disposition, we allow a citation to that
`decision.” United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes
`that Wood v. Milyard, Bates v. Board of County Commissioners of Mayes County, 674 F. App’x
`830 (10th Cir. 2017), Allen v. Corrections Corp. of America, 524 F. App’x 460 (10th Cir. 2013),
`Boyd v. Werholtz, 443 F. App’x 331 (10th Cir. 2011), Von Hallcy v. Clements, 519 F. App’x 521
`(10th Cir. 2013), Merryfield v. Jordan, 431 F. App’x 743 (10th Cir. 2011), and Ciempa v. Ward,
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`To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must assert acts by
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`government officials acting under color of law that result in a deprivation of rights which the
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`Constitution secures. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). There must
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`be a connection between official conduct and violation of a constitutional right, because conduct
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`that is not connected to a constitutional violation is not actionable under § 1983. See Trask v.
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`Franco, 446 F.3d 1036, 1046 (10th Cir. 1998).
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`Further, a civil rights action against a public official or entity may not be based solely on a
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`theory of respondeat superior liability for the actions of co-workers or subordinates. A plaintiff
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`must plead that each government official, through the official’s own individual actions, has
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`violated the Constitution. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). The plaintiff must
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`allege some personal involvement by an identified official in the alleged constitutional violation
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`to succeed under § 1983. See Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008). To hold
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`private entities acting under color of state law or county entities liable under § 1983, a plaintiff
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`must allege the existence of a policy or custom, and that there is a direct causal link between the
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`policy or custom, and the injury alleged. See Hinton v. City of Elwood, 997 F.2d 774, 782 (10th
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`Cir. 1993); Dodd v. Richardson, 614 F.3d 1185, 1195 (10th Cir. 2010); Bates v. Bd. of Cty.
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`Comm’rs of Mayes Cty., 674 F. App’x 830, 833 (10th Cir. 2017)(unpublished).
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`150 F. App’x 905 (10th Cir. 2005), have persuasive value with respect to material issues, and will
`assist the Court in its disposition of this Memorandum Opinion and Order Denying Motion to
`Remand.
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`In a § 1983 action, it is particularly important that a plaintiff’s complaint “make clear
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`exactly who is alleged to have done what to whom, to provide each individual with fair notice as
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`to the basis of the claim against him or her.” Robbins v. Oklahoma, 519 F.3d 1242, 1249-50 (10th
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`Cir. 2008)(emphasis in the original). Nor do generalized statements that the defendants caused the
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`deprivation of a constitutional right, without plausible supporting factual allegations, state any
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`claim for relief. See Robbins v. Oklahoma, 519 F.3d at 1249-50.
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`THE LAW OF COPYRIGHT INFRINGEMENT
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`The Copyright Act of 1976, 17 U.S.C. §§ 101-810 (the “1976 Copyright Act”), governs
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`copyright infringement claims, over which federal courts have exclusive jurisdiction. See 28
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`U.S.C. § 1338(a). The 1976 Copyright Act provides that
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`the owner of copyright under this title has the exclusive rights to do and to authorize
`any of the following: (1) to reproduce the copyrighted work in copies . . . ; (2) to
`prepare derivative works based upon the copyrighted work; [and] (3) to distribute
`copies . . . of the copyrighted work to the public by sale or other transfer of
`ownership, or by rental, lease, or lending; . . . .
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`17 U.S.C. § 106. Anyone who violates any of the copyright owner’s exclusive rights by using or
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`authorizing the copyrighted work’s use in one of the ways the statute outlines, infringes the
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`copyright. See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433 (1984)(citing
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`17 U.S.C. § 501(a)).
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`There are two elements to a copyright infringement claim: “(1) ownership of a valid
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`copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns,
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`Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). To prevail on a claim of copyright
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`infringement, the plaintiff bears the burden of establishing ownership of a valid copyright and the
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`defendant’s violation of any one of the exclusive rights granted to copyright owners under 17
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`U.S.C. § 106. See Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 831-32 (10th Cir.
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`1993); Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005).
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`To establish direct copyright infringement, a plaintiff must allege and prove that a
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`defendant “unlawfully appropriated protected portions of the copyrighted work.” Gates Rubber
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`Co. v. Bando Chem. Indus., Ltd., 9 F.3d at 832. This requires proving both: (i) that the defendant,
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`as a factual matter, copied portions of plaintiff’s work; and (ii) that those elements of the work that
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`were copied were protected expression and used in such a manner that the appropriation is
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`actionable under § 106. See Jacobsen v. Deseret Book Co., 287 F.3d 936, 942 (10th Cir. 2002);
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`Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d at 832.
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`Although the 1976 Copyright Act does not expressly cover contributory infringement, this
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`doctrine of secondary liability is well established in the law and is grounded in common-law
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`principles of secondary liability. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545
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`U.S. 913, 930 (2005). Contributory liability attaches when the defendant intentionally induced or
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`encouraged direct infringement by another. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster,
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`Ltd., 545 U.S. at 930. To establish contributory infringement, a plaintiff must prove: (i) direct
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`copyright infringement by a third-party; (ii) knowledge by the defendant of the direct
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`infringement; and (iii) that the defendant intentionally induced, caused, or materially contributed
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`the infringement. See Diversey v. Schmidly, 738 F.3d 1196, 1204 (10th Cir. 2013). One way of
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`establishing contributory liability is by showing a defendant “authorized the infringing use.”
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`Diversey v. Schmidly, 738 F.3d at 1204. See Boatman v. U.S. Racquetball Ass’n, 33 F. Supp. 3d
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`1264, 1273 (D. Colo. 2014)(Krieger, J.).
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`THE LAW REGARDING FIRST AMENDMENT RIGHTS AND RESTRICTIONS ON
`PRISONER CORRESPONDENCE
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`Prisoners retain the First Amendment right of free speech, and prison officials may not
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`retaliate against prisoners for exercising that right. See Farrow v. West, 320 F.3d 1235, 1248 (11th
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`Cir. 2003)(“The First Amendment forbids prison officials from retaliating against prisoners for
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`exercising the right of free speech.”). Prisoners also retain their First Amendment right to petition
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`the government for a redress of grievances. See Wildberger v. Bracknell, 869 F.2d 1467, 1468
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`(11th Cir. 1989). A prisoner’s incarceration, however, legitimately limits his or her rights. See
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`Pell v. Procunier, 417 U.S. 817, 822 (1974). “[A] prison inmate retains those First Amendment
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`rights that are not inconsistent with his status as a prisoner or with the legitimate penological
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`objectives of the corrections system.” Pell v. Procunier, 417 U.S. at 822.
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`The Supreme Court of the United States has treated interference with a prisoner’s mail as
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`implicating the First Amendment free speech right. See Bolgers v. Youngs Drug Prods. Corp.,
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`463 U.S. 60, 69 (1983); Blount v. Rizzzi, 400 U.S. 410, 416 (1971); Lamont v. Postmaster General,
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`381 U.S. 301, 307-08 (1965). See also Hale v. Ashcroft, Civil No. 06-cv-00541-REB-KLM, 2008
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`WL 4426128, at *10 (D. Colo. Sept. 24, 2008)(Hale, M.J.) Courts have, however, upheld the
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`censorship of mail for legitimate penological interests. See Wolff v. McDonnell, 418 U.S. 539,
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`576 (1974)(noting that “freedom from censorship is not equivalent to freedom from inspection or
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`perusal,” and, furthermore, while “First Amendment rights of correspondents with prisoners may
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`protect against the censoring of inmate mail, when not necessary to protect legitimate
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`governmental interests, . . . this Court has not yet recognized First Amendment rights of prisoners
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`in this context . . . .” (citations omitted)).
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`In the censorship context, the Supreme Court has differentiated between ingoing and
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`outgoing mail, and has afforded greater First Amendment protection to outgoing mail, because of
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`the lesser security concerns associated with outgoing mail. See Thornburgh v. Abbott, 490 U.S.
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`401, 413 (1989). In one instance, the Supreme Court prohibited a prison’s censorship of outgoing
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`mail containing grievances, where the prison’s justification for the censorship was “as a precaution
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`against flash riots,” because the Supreme Court concluded it was unlikely that outgoing mail
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`stating grievances would impact internal prison security. Procunier v. Martinez, 416 U.S. 396,
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`416 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). In
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`Thornburgh v. Abbott, the Supreme Court reiterated its statements in Procunier v. Martinez
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`that outgoing correspondence that magnifies grievances or contains inflammatory
`racial views cannot reasonably be expected to present a danger to the community
`inside the prison. In addition, the implications for security are far more predictable.
`Dangerous outgoing correspondence is more likely to fall within readily
`identifiable categories: examples noted in Martinez include escape plans, plans
`relating to ongoing criminal activity, and threats of blackmail or extortion.
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`Thornburgh v. Abbott, 490 U.S. at 411-12. The Supreme Court noted that “[c]ategorically
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`different considerations” apply in Thornburgh v. Abbott, which deals with incoming publications,
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`than in Procunier v. Martinez, which deals with outgoing personal correspondence. Thornburgh
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`v. Abbott, 490 U.S. at 412. Thornburgh v. Abbott
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`overruled Martinez’s standard of review for limitations placed on a prisoner’s right
`to incoming mail, but Thornburgh did not overrule Martinez’s holding pertaining
`to outgoing mail. The Thornburgh Court recognized that “[t]he implications of
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`outgoing correspondence for prison security are of a categorically lesser magniture
`than the implications of incoming materials . . . .” Under Martinez, limitations on
`a prisoner’s First Amendment rights in his outgoing mail “must further an important
`or substantial governmental interest unrelated to the suppression of expression
`[and] . . . must be no greater than is necessary or essential to the protection of the
`particular governmental interest involved.”
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`Treff v. Galetka, 74 F.3d 191, 194-95 (10th Cir. 1996)2(citations omitted)(first quoting Thornburgh
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`v. Abbott, 490 U.S. at 413; and then quoting Procunier v. Martinez, 416 U.S. at 413). Prison
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`officials may, for instance, justifiably censor outgoing mail containing escape plains, information
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`about proposed criminal activity, or encoded messages. See Procunier v. Martinez, 416 U.S. at
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`413. “Prison officials may not censor inmate correspondence simply to eliminate unflattering or
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`unwelcome opinions or factually inaccurate statements.” Procunier v. Martinez, 416 U.S. at 414.
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`See Gandy v. Ortiz, 122 F. App’x 421, 423 (10th Cir. 2005)(unpublished)(“Censorship of personal
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`correspondence that include threats, blackmail, contraband, plots to escape, discuss criminal
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`activities, or otherwise circumvent prison regulations, is essential to the protection of prison order
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`and security. . . . Prison officials, however, may not punish inmates for statements made in letters
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`to outsiders that do not impinge on these important governmental interests.”)
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`When evaluating a challenge to a prison restriction which a prisoner asserts inhibits First
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`Amendment interests, the court must analyze the restriction “in terms of the legitimate policies
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`and goals of the corrections system, to whose custody and care the prisoner has been committed
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`in accordance with due process of law.” Pell v. Procunier, 417 U.S. at 822. See Turner v. Safley,
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`2The Tenth Circuit also concluded in Treff v. Galetka that there is a clearly established
`First Amendment right for a prisoner to have his outgoing mail processed for delivery. See Treff
`v. Galetka, 74 F.3d at 195.
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`482 U.S. 78, 89 (1987)(holding that a prison regulation which impinges on First Amendment
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`freedoms is invalid unless “it is reasonably related to legitimate penological interests.”). Under
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`the Turner v. Safley standard, a prison regulation cannot be sustained if “the logical connection
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`between the regulation and the asserted goal is so remote as to render the policy arbitrary or
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`irrational,” Turner v. Safley, 482 U.S. at 89-90, or if the regulation is an “exaggerated response,”
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`Turner v. Safley, 482 U.S. at 90, to the prison’s legitimate concerns. “Running a prison is an
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`inordinately difficult undertaking that requires expertise, planning, and the commitment of
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`resources.” Turner v. Safley, 482 U.S. at 84-85 (quoted in Smith v. Mosley, 532 F.3d at 1277).
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`“Prison officials are therefore ‘accorded latitude in the administration of prison affairs.’” Smith
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`v. Mosley, 532 F.3d at 1277 (quoting Cruz v. Beto, 405 U.S. 319, 321 (1972)). In Ramos v. Lamm,
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`639 F.3d 559 (10th Cir. 1980), the United States Court of Appeals for the Tenth Circuit stated:
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`Because the running of a penal institution is both complex and difficult, prison
`administrators are to be “accorded wide-ranging deference” in adopting and
`executing policies and practices which, in their judgment, are necessary to preserve
`internal order and discipline and to maintain institutional security. “Such
`considerations are peculiarly within the province and professional expertise of
`corrections officials, and, in the absence of substantial evidence in the record to
`indicate that officials have exaggerated their response to these considerations,
`courts should ordinarily defer to their expert judgment in such matters.”
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`Ramos v. Lamm, 639 F.3d at 579 (citations omitted)(first quoting Bell v. Wolfish, 441 U.S. 520,
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`547 (1979);and then quoting Jones v. N.C. Prisoner’s Union, 433 U.S. 119, 128 (1977)).
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`THE LAW REGARDING CLAIMS OF RETALIATION FOR EXERCISE OF FIRST
`AMENDMENT RIGHTS
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`To establish a claim of retaliation for exercise of First Amendment rights, a plaintiff must
`
`
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`demonstrate that: (i) he was engaged in constitutionally protected activity; (ii) the defendant’s
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`actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from
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`continuing to engage in that activity; and (iii) the plaintiff’s exercise of constitutionally protected
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`conduct substantially motivated the defendant’s adverse action as a response. See Allen v. Corr.
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`Corp. of Am., 524 F. App’x 460, 463 (10th Cir. 2013)(unpublished)(citing Shero v. City of Grove,
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`510 F.3d 1196, 1203 (10th Cir. 2007)). Prison officials may not retaliate against or harass an
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`inmate because the inmate has exercised his or her constitutional rights, including engaging in the
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`grievance process. See Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). This prohibition
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`is applicable even where the action taken in retaliation would otherwise be permissible. See
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`Peterson v. Shanks, 149 F.3d at 1144 (citing Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.
`
`1990)).
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`Nonetheless, it is not the federal judiciary’s role to scrutinize and interfere with a state
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`prison’s daily operations, and the restriction on retaliation does not change this role. An inmate
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`does not become inoculated from the normal conditions of confinement which convicted felons
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`serving time in prison experience simply by engaging in protected activity. See Smith v.
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`Maschner, 899 F.2d at 949-50. A prisoner alleging retaliation must prove that, but for the
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`retaliatory motive, the incidents he or she alleges are retaliatory, including disciplinary action,
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`would not have taken place. See Smith v. Maschner, 899 F.2d at 949-50. In addition, an inmate
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`must identify specific facts showing retaliation because of the exercise of the prisoner’s
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`constitutional rights. See Peterson v. Shanks, 149 F.3d at 1145.
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`THE LAW REGARDING CIVIL RIGHTS CLAIMS AND PRISON GRIEVANCE
`PROCEDURES
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`“There is no independent constitutional right to state administrative grievance procedures.”
`
`
`
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`Boyd v. Werholtz, 443 F. App’x 331, 332 (10th Cir. 2011)(unpublished). For a state statute to
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`create a “legitimate claim of entitlement” to a benefit and therefore an interest that due process
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`protects, it must, “[s]tated simply,” place “substantive limitations on official discretion.” Ky.
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`Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 462 (1989). A viable due process claim cannot
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`rest on allegations of an unfair or inadequate grievance process. See Von Hallcy v. Clements, 519
`
`F. App’x 521, 524 (10th Cir. 2013)(unpublished)(rejecting prisoner’s claim that prison director
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`violated due process by providing him with an inadequate prisoner grievance reporting system);
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`Merryfield v. Jordan, 431 F. App’x 743, 749-50 (10th Cir. 2011)(unpublished)(affirming dismissal
`
`of claim that prison grievance policy was constitutionally inadequate, because there is no
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`constitutional right to certain grievance procedures); Ciempa v. Ward, 150 F. App’x 905, 906-07,
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`909 (10th Cir. 2005)(unpublished)(finding no error in judge’s dismissal of due process claim based
`
`on alleged ineffective prison grievance procedure). See also Burnett v. Allbaugh, 715 F. App’x
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`848, 852 (10th Cir. 2017).
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`Officials’ handling of a prisoner’s grievances does not, by itself, give rise to a constitutional
`
`violation. A prison officer’s failure to adequately respond to a prisoner’s grievance does not
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`implicate a constitutional right. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)(per
`
`curiam)(holding that official’s failure to process inmates’ grievances, without more, is not
`
`actionable under § 1983); Greer v. DeRobertis, 568 F. Supp. 1370, 1375 (N.D. Ill.
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`1983)(Shadur, J.)(prison officials’ failure to respond to grievance letter violates no constitutional
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`or federal statutory right). See also Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982)(holding that
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`a prison grievance procedure does not require the procedural protections which the Fourteenth
`
`Amendment to the Constitution of the United States of America envisions). Prison grievance
`
`procedures are a procedural right only, and do not confer any substantive right upon an inmate.
`
`Grievance procedures do not give rise to a protected liberty interest requiring the Fourteenth
`
`Amendment’s procedural protections. See Buckley v. Barlow, 997 F.2d at 495 (quoting Azeez v.
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`DeRobertis, 568 F. Supp. 8 (N.D. Ill. 1982)(Nordberg, J.)). See also Mann v. Adams, 855 F.2d
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`639, 640 (9th Cir. 1988)(holding that an inmate has no legitimate claim of entitlement to a
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`grievance procedure).
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`ANALYSIS OF PLAINTIFF HUNNICUTT’S CLAIMS
`
`
`
`The Court concludes that Hunnicutt has not stated a copyright claim upon which relief may
`
`be granted. The Court concludes that Hunnicutt has stated a § 1983 claim against prison officials
`
`based on their alleged retaliation against him for his exercise of his First Amendment rights. The
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`Court concludes that Hunnicutt has not stated a claim regarding the prison grievance system upon
`
`which relief may be granted. With federal claims remaining in the case, the Court will not remand
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`the case, and the Court denies the Motion to Remand.
`
`I.
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`HUNNICUTT HAS NOT STATED A CLAIM FOR COPYRIGHT
`INFRINGEMENT UPON WHICH RELIEF MAY BE GRANTED.
`
`Hunnicutt alleges that the Defendants committed copyright infringement, violated the
`
`copyright on his cartoons, and ignored his copyright concerns. See Complaint at 1-3. Hunnicutt
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`does not allege or provide, however, any factual evidence that, under the 1976 Copyright Act, he
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`is the owner of a valid copyright. See 17 U.S.C. § 106. Nor does Hunnicutt make factual
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`allegations that any Defendant copied or otherwise made use of any element of a copyrighted work
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`in a manner that the 1976 Copyright Act prohibits. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
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`