Smith v. Webb et al

Filing 17

ORDER DISMISSING CASE AS FRIVOLOUS. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice, by Judge Lewis T. Babcock on 5/7/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02983-BNB
RODNEY A. SMITH,
Plaintiff,
v.
DAWN M. WEBER, Assistant District Attorney, Denver County, in her individual
and official capacities, and
CARLA VARNOLD, Director of Human Resources, Grand Peak Property Mgt., in her
individual capacity,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Rodney A. Smith, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the correctional facility in
Buena Vista, Colorado. On April 12, 2012, Mr. Smith filed pro se a third and final
amended civil rights complaint (ECF No. 14) pursuant to 42 U.S.C. §§ 1983, 1985, and
1986 challenging his state court criminal conviction.
Mr. Smith has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to
dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks
monetary relief against a defendant who is immune from such relief. A legally frivolous
claim is one in which the plaintiff asserts the violation of a legal interest that clearly does
not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams,
490 U.S. 319, 324 (1989). Under § 1983, a plaintiff must allege that the defendants

have violated his or her rights under the Constitution and laws of the United States while
they acted under color of state law. Adickes v. S. H. Kress & Co, 398 U.S. 144, 150
(1970).
Mr. Smith is cautioned that his ability to file a civil action or appeal in federal court
in forma pauperis pursuant to § 1915 may be barred if he has three or more actions or
appeals in any federal court that were dismissed as frivolous, malicious, or for failure to
state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). Under §
1915(g), the Court may count dismissals entered prior to the enactment of this statute.
Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).
The Court must construe Mr. Smith’s filings liberally because he 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 should not be an advocate
for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons set forth below, the
third and final amended complaint and the action will be dismissed as legally frivolous.
Mr. Smith, who alleges he is African-American, contends that on May 4, 2010,
during his criminal trial, Defendant Dawn M. Weber, an assistant Denver district
attorney and the prosecuting attorney in his case, conspired with Defendant Carla
Varnold of Grand Peaks Property Management, his former employer, to obtain his
personnel files so they could be admitted into evidence during his trial in order to
prejudice the jury. He complains that Ms. Weber obtained the personnel information
without a warrant and without Plaintiff’s consent. On the basis of these allegations, Mr.
Smith asserts Fourth Amendment claims of illegal search and seizure (claims one and
three), and a Fourteenth Amendment claim of property deprivation without due process
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and equal protection violations (claim two). As relief, he asks for money damages and
injunctive relief, i.e., the return of the illegally seized property.
Mr. Smith’s damages claims lack merit and may be dismissed because Mr. Smith
may not sue the named Defendants for the alleged constitutional violations. Despite his
allegations to the contrary, Mr. Smith’s claims against Ms. Weber are barred by
absolute prosecutorial immunity. "[A]cts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which occur in the course of his [or her]
role as an advocate for the State, are entitled to the protections of absolute immunity."
Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993); Hunt v. Bennett, 17 F.3d 1263, 1267
(10th Cir. 1994). Therefore, the claims for damages against Ms. Weber are dismissible
pursuant to § 1915(e)(2)(B)(iii) because Mr. Smith seeks damages against a Defendant
who is immune from such relief.
Mr. Smith’s damages claims against Ms. Varnold also must be dismissed as
legally frivolous under § 1915(e)(2)(B)(i). As previously stated, to state a claim for relief
under § 1983, a plaintiff must allege that the defendant deprived him of a constitutional
or federal statutory right while acting under color of state law. See Adickes, 398 U.S. at
151. The state law requirement of § 1983 necessarily "excludes from its reach merely
private conduct, no matter how discriminatory or wrongful." Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks and citations omitted); see
also Hall v. Witteman, 584 F.3d 859, 864 (10th Cir. 2009) (discussing state action
requirement under both § 1983 and § 1985(3)). Private persons jointly engaged with
state officials in prohibited action may act under "color of law" for purposes of § 1983.
See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). However, the third and
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final amended complaint is devoid of any allegations to suggest that Ms. Varnold acted
under color of state law. The fact that she worked with the state prosecutor to provide
employment information for Mr. Smith’s trial does not transform Ms. Varnold into a state
actor. As such, the allegations necessarily do not show joint activity between Ms.
Varnold and a state actor to deprive the Plaintiff of his federal rights.
The conspiracy claims should be dismissed because Mr. Smith has failed to make
factual allegations to support a claim asserting the racial or class-based discriminatory
animus required for a § 1985 conspiracy, see Brooks v. Gaenzle, 614 F.3d 1213, 1227
(10th Cir. 2010), and his conclusory allegations of conspiracy are insufficient to state a §
1983 claim. Id. at 1228. Therefore, the conspiracy claims will be dismissed as legally
frivolous under § 1915(e)(2)(B)(i).
Lastly, Mr. Smith claims a Fourth Amendment search-and-seizure violation based
on Ms. Varnold’s release of his personnel records to Ms. Weber. However, Mr. Smith
has no right to the relief he seeks, i.e., the return of his personnel files, because the
personnel records are the property of his former employer. The records do not belong
to Mr. Smith. Moreover, Mr. Smith fails to provide the Court with any authority indicating
that he has a privacy interest in the personnel files maintained by his former employer,
and he lacks a reasonable expectation of privacy in his personnel file. See Roberts v.
Mentzer, 382 F. App’x 165 (3d Cir. 2010) (citing O’Connor v. Ortega, 480 U.S. 709, 717
(1987). Therefore, Mr. Smith’s Fourth Amendment claim is without merit, and will be
dismissed as legally frivolous pursuant to § 1915(e)(2)(B)(i). Because the personnel
files belong to his former employer, Mr. Smith cannot support a claim of property

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deprivation without due process. He fails to allege any facts in support of an equal
protection claim. The third amended complaint and the action will be dismissed.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Smith files a notice of appeal he also must pay the full $455.00 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the third and final amended complaint (ECF No. 14) and the
action are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) as legally frivolous. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied
without prejudice to filing an appropriate motion in the United States Court of Appeals
for the Tenth Circuit.
DATED at Denver, Colorado, this 7th

day of

May

, 2012.

BY THE COURT:

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

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