Bomprezzi v. Kaprivnikar
Filing
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ORDER to Dismiss in Part and to Draw in Part to District Judge and Magistrate Judge. Defendant Colorado Department of Corrections is dismissed as an improper party to this action. The Complaint as asserted against Defendant Dr.Joan Kaprivnikar shall be drawn to a district judge and to a magistrate judge. By Judge Lewis T. Babcock on 3/12/2012. (sah, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03344-BNB
MEL BOMPREZZI,
Plaintiff,
v.
DR. JOAN KAPRIVNIKAR, and
COLORADO DEPARTMENT OF CORRECTIONS,
Defendants.
ORDER TO DISMISS IN PART AND TO DRAW IN PART
TO DISTRICT JUDGE AND MAGISTRATE JUDGE
Plaintiff, Mel Bomprezzi, is a prisoner in the custody of the Colorado Department
of Corrections (DOC). He currently is incarcerated at the San Carlos Correctional
Facility in Pueblo, Colorado. Mr. Bomprezzi, acting pro se, has filed a Prisoner
Complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C. §§ 1983, alleging that his rights
under the United States Constitution have been violated. He seeks prospective
injunctive relief.
The Court construes the Complaint liberally because Mr. Bomprezzi 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. Bomprezzi asserts that Defendant Dr. Joan Kaprivnikar is violating his Eighth
Amendment rights by subjecting him to involuntary injections of antipsychotic drugs.
The Eighth Amendment claim asserted against Defendant Kaprivnikar will be drawn to a
district judge and a magistrate judge. The Colorado Department of Corrections will be
dismissed for the following reasons.
Any claim against Defendant Colorado Department of Corrections is barred by
the Eleventh Amendment. See Will v. Michigan Dep ’ t of State Police, 491 U.S. 58, 66
(1989). “It is well established that absent an unmistakable waiver by the state of its
Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by
Congress, the amendment provides absolute immunity from suit in federal courts for
states and their agencies.” Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584,
588 (10th Cir. 1994).
Although the Eleventh Amendment does not bar a federal court action so long as
the plaintiff seeks in substance only prospective relief and not retrospective relief for
alleged violations of federal law, Mr. Bomprezzi must assert a claim for prospective
relief against individual state officers. Verizon Maryland v. Public Service Commission
of Maryland, 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 296 (1997)); Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007). Defendant
Colorado Department of Corrections, therefore, is an improper party to this action and
will be dismissed. Accordingly, it is
ORDERED that Defendant Colorado Department of Corrections is dismissed as
an improper party to this action. It is
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FURTHER ORDERED that the Complaint as asserted against Defendant Dr.
Joan Kaprivnikar shall be drawn to a district judge and to a magistrate judge.
DATED at Denver, Colorado, this 12th
day of
March
, 2012.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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