Solazzo v. Tenbrink et al

Filing 12

ORDER of Dismissal. ORDERED that the Prisoner Complaint and the action are dismissed without prejudice. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 5/18/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00649-BNB
ANDREW V. SOLAZZO,
Plaintiff,
v.
CORY B. TENBRINK, to be sued in his individual capacity,
JULIE MARSHALL, to be sued in her individual capacity,
NANCY L. COHEN, to be sued in her individual capacity,
MARY MULLARKEY, to be sued in her individual capacity,
MRS. S. WOODARD, to be sued in her individual capacity,
SUSAN EDDY, to be sued,
LINDA LESLEY, to be sued in her individual capacity,
CAROL KING, to be sued in her individual capacity,
RICHARD WEHMHOEFER, to be sued in his individual capacity,
CHARLES E. MORTIMER, to be sued in his individual capacity, and
JOHN DOE, to be sued in his or her individual capacity,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Andrew V. Solazzo, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the correctional center in
Buena Vista, Colorado. Mr. Solazzo, acting pro se, filed a Prisoner Complaint pursuant
to 42 U.S.C. §§ 1983 and 1985 challenging the validity of a state court criminal
conviction.
Mr. Solazzo 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. Solazzo 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. Solazzo’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). If the complaint reasonably can be read
“to state a valid claim on which the plaintiff could prevail, [the Court] should do so
despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his unfamiliarity with pleading
requirements.” Hall, 935 F.2d at 1110. However, the Court does not act as an
advocate for a pro se litigant. See id. For the reasons stated below, the complaint and
the action will be dismissed.
Although the complaint is not a model of clarity, Mr. Solazzo appears to assert
that he was denied the right to a fair trial because he was denied the ability to withdraw

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his plea agreement. He complains that, pursuant to his plea bargain, he was sentenced
to six years to life imprisonment. Mr. Solazzo seeks money damages and a new trial.
To the extent Mr. Solazzo seeks a new trial, his sole federal remedy is a writ of
habeas corpus, see Preiser v. Rodriguez, 411 U.S. 475, 504 (1973), after he exhausts
state court remedies. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000).
Habeas corpus claims may not be raised in this § 1983 action. Mr. Solazzo must file a
separate habeas corpus action after exhaustion of state remedies if wishes to pursue
habeas corpus claims.
Although Mr. Solazzo’s claims for damages may be asserted in a §1983 action,
the claims are barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). Pursuant
to Heck, if a judgment for damages necessarily would imply the invalidity of a criminal
conviction or sentence, the action does not arise until the conviction or sentence has
been reversed on direct appeal, expunged by executive order, declared invalid by an
authorized state tribunal, or called into question by the issuance of a federal habeas
writ. See Heck, 512 U.S. at 486-87. Mr. Solazzo also may not challenge the validity of
his conviction or sentence by seeking damages pursuant to § 1985. Martínez v. Ensor,
958 F. Supp. 515, 517-18 (D. Colo. 1997).
There is no indication that Mr. Solazzo has invalidated his conviction and
sentence. Therefore, the Court finds that Mr. Solazzo’s claims for damages challenging
the validity of his state court criminal resentencing are barred by the rule in Heck. The
dismissal will be without prejudice. See Fottler v. United States, 73 F.3d 1064, 1065
(10th Cir. 1996). However, a Heck dismissal counts as a strike under § 1915(g). See
Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1177-78 (10th Cir. 2011).

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The Court also notes that Mr. Solazzo’s complaint suffers from other deficiencies.
Judge Julie Marshall and Chief Justice Mary Mullarkey are absolutely immune from
liability in civil rights suits when acting in a judicial capacity unless they act 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). Judge Marshall was acting in her judicial capacity when she convicted and
sentenced Mr. Solazzo and, therefore, was not acting in the clear absence of all
jurisdiction. Mr. Solazzo appears to sue Chief Justice Mary Mullarkey because she was
chief justice of the Colorado Supreme court when he filed a complaint against Judge
Marshall. However, he does not make any allegations indicating that any response by
Chief Justice Mullarkey to the complaint was outside her judicial capacity. Therefore,
the claims Plaintiff asserts against Judge Marshall and Chief Justice Mullarkey are
barred by absolute judicial immunity.
Mr. Solazzo also appears to be suing other Defendants based of their actions
conduct in response to complaints Mr. Solazzo filed against Defendant Corey B.
Tenbrink, his counsel in the criminal proceedings. Any claims against Mr. Tenbrink fail.
Mr. Tenbrink is not a state actor under § 1983 whether he was a private attorney who
represented Mr. Solazzo or a public defender, and he is not a proper party to this action.
Polk County v. Dodson, 454 U.S. 312, 318 & 325 (1981).
Mr. Solazzo claims against Chief Justice Mullarkey, Charles E. Mortimer, Nancy
L. Cohen, and Richard Wehmhoefer based on his complaints against Judge Marshal
and Mr. Tenbrink also fail. Their decisions bear no connection to his conviction on state
criminal charges.

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Mr. Solazzo clearly is suing other individuals involved in his criminal proceedings:
his probation officer, Susan Woodard; Detective Linda Lesley; Investigator Carol King;
and Susan Eddy, the alleged victim. See Adickes, 398 U.S. at 150. Under Heck, he
may not sue these Defendants for damages.
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. Solazzo 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 Prisoner Complaint and the action are dismissed without
prejudice because the habeas corpus claims may not be raised in this action pursuant
to 42 U.S.C. §§ 1983 and 1985, and the claims for damages are barred by the rule in
Heck. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

18th

day of

May

, 2012.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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