Fresquez v. Minks et al

Filing 26

ORDER to Dismiss in Part and to Draw In Part to District Judge and Magistrate Judge. ORDERED that Defendants Chantel Corkle, Douglas K. Wilson, Writer Mott, Laura Wassmuth, and Dennis Hall are dismissed from the action and the claims asserted against them are dismissed as legally frivolous. FURTHER ORDERED that the Complaint with respect to the remaining Defendants shall be drawn to a district judge and to a magistrate judge. FURTHER ORDERED that Mr. Fresquez is directed to submit a certified account statement by 4/2/12, by Judge Lewis T. Babcock on 3/22/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02712-BNB
LEROY DAMASIO FRESQUEZ,
Plaintiff,
v.
SHERIFF TED MINKS,
MICHAEL FISH, Detention Service Manager,
JOHN DOE (CAPTAIN), March 5, 2010,
LT. MARTINALLI,
LT. G. GITTIN,
LT. J. LUCAS,
ADMINISTRATIVE SGT. RENFRO,
SGT. TROY BETKA,
SGT. SCOTT HAPP,
SGT. STEVEN WYGANT,
OFFICER KATHRINE FEROE,
DEPUTY SHERIFF CRUMBAKER,
DEPUTY SHERIFF RYAN VIERS,
DEPUTY SHERIFF DUSTIN DYELING,
DEPUTY SHERIFF ANTHONY KOTRIS,
DEPUTY SHERIFF DONALD SPRINGFIELD,
DEPUTY SHERIFF HOLLEY,
DEPUTY SHERIFF JAMES GELEUDE,
DEPUTY SHERIFF JASON RICHARDSON,
DEPUTY SHERIFF REID PERRY,
DEPUTY SHERIFF WILLIAM BOHM,
DEPUTY SHERIFF ERIK BOUGHAM,
DEPUTY SHERIFF HERBERT LONGSHORE,
DEPUTY SHERIFF #1958 (Name Unknown),
COUNSELOR MIKE COLLINS,
COUNSELOR SUPERVISOR DEBRA ELUDO,
CHANTEL CORKLE, Atty,
DOUGLAS K. WILSON, Atty,
DENNIS HALL, Jefferson County Judge,
WRITER MOTT, Atty,
LAURA WASSMUTH, Atty,
CORRECTIONAL HEALTHCARE MANAGEMENT,
CLAUDIA VAN BUREN, HSA,
RAYMOND HERR, Responsible Physician,
TRACY HAINES, LPN, and
KATHERINE BECERRA, RN,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW IN PART
TO DISTRICT JUDGE AND MAGISTRATE JUDGE

Plaintiff, Leroy Damasio Fresquez, is a prisoner in the custody of the Colorado
Department of Corrections and currently is incarcerated at the Colorado State
Penitentiary in Cañon City, Colorado. Mr. Fresquez, acting pro se, has filed a Prisoner
Complaint pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343, and 1391 and
seeks injunctive relief and money damages.
The Court construes the Complaint liberally because Mr. Fresquez is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court cannot act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the action will be dismissed in part and drawn in part to a district judge and a
magistrate judge.
Mr. Fresquez asserts his Eighth Amendment rights were violated when
Defendants Ryan Viers and Erik Baughman physically abused him and other named
Defendants failed to provide medical treatment for the injuries he incurred as a result of
the abuse. Mr. Fresquez also asserts that his due process rights were violated when
certain Defendants tampered with and abridged his outgoing legal mail. Mr. Fresquez
further asserts Defendants committed assault and battery, harassment, retaliation
against a witness, and first degree misconduct in violation of Colorado state law. Mr.
Fresquez seeks injunctive relief and money damages.
The claims asserted against Defendants Chantel Corkle, Douglas K. Wilson,
Writer Mott, Laura Wassmuth, and Dennis Hall will be dismissed for the following
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reasons. Defendant Judge Dennis Hall is absolutely immune from liability in civil rights
suits when he is acting in his judicial capacity, unless he acts in the clear absence of all
jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435
U.S. 349, 356-57 (1978); Hunt v. Bennett, 17 F.3d 1263, 1266-67 (10th Cir. 1994).
Defendants Wassmuth, Corkle, Mott, and Wilson also are immune from suit in § 1983
actions, whether they are prosecutors, public defenders, or private attorneys. See Polk
County v. Dodson, 454 U.S. 312, 318 and 325 (1981) (Private attorneys or public
defenders are not state actors under § 1983 and are not proper parties to this action.);
see also, Imbler v. Pachtman, 424 U.S. 409, 420-24 (1976) (Prosecutors enjoy
immunity from suit under § 1983.).
Even if Defendants Wassmuth, Corkle, Mott, Wilson, and Hall were not immune
from suit under § 1983, the Court finds no constitutional violation based on a claim of
“ethical duty” to ensure a prisoner’s safety. Mr. Fresquez does not assert that
Defendants Corkle, Wilson, Wassmuth, Mott, or Hall personally participated in the
alleged assault, the denial of his medical needs, and the interference with his legal
papers as required under Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976).
Mr. Fresquez also does not assert that Defendants Wassmuth, Corkle, Mott, Wilson or
Hall and jail personnel had an agreement or meeting of the minds to violate his
constitutional rights. Finally, Defendants Wassmuth, Corkle, Mott, Wilson, and Hall are
not responsible for the proper management of the jail. Mr. Fresquez, therefore, is not
able to show active participation or acquiescence through personal participation,
exercise of control of direction, failure to supervise, or tacit authorization of the offending
acts by these Defendants. See Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151
(10th Cir. 2006); see also, Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988).
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Because the Court finds no legal authority for a violation of a prisoner’s constitutional
rights based on an alleged ethical duty, the claims asserted against Defendants Corkle,
Wilson, Wassmuth, Mott, and Hall will be dismissed as legally frivolous.
Finally, although Mr. Fresquez has made monthly payments for January and
February, he has not complied with the Court’s Order of November 15, 2011, regarding
the month of March. Mr. Fresquez is required to show cause why he is not able to
make a monthly payment by submitting a certified trust fund account statement. The
account statement Mr. Fresquez submitted on March 9, 2012, is not certified and does
not show the deposits and balance for his account for the entire month of February.
Mr. Fresquez will be directed to submit an account statement that is certified and
that shows the deposits to and balance of his account for the entire month of February.
Mr. Fresquez again is instructed to make monthly payments to the Court of twenty
percent of the preceding month’s income credited to his account each time the amount
in the account exceeds $10.00 or to show cause why he has no assets and no means
by which to make each monthly payment by submitting a certified account statement
that shows the deposits and balance for the entire preceding month. Accordingly, it is
ORDERED that Defendants Chantel Corkle, Douglas K. Wilson, Writer Mott,
Laura Wassmuth, and Dennis Hall are dismissed from the action and the claims
asserted against them are dismissed as legally frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). It is
FURTHER ORDERED that the Complaint with respect to the remaining
Defendants shall be drawn to a district judge and to a magistrate judge. It is

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FURTHER ORDERED that Mr. Fresquez is directed to submit a certified account
statement that shows deposits and balance for the month of February. It is
FURTHER ORDERED that if Mr. Fresquez fails to file a certified account
statement by April 2, 2012, as described above, the Complaint and action will be
dismissed without notice.
DATED at Denver, Colorado, this 22nd

day of

March

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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