White v. Oeffler et al

Filing 6

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 10/25/12. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-02589-BNB
CHRISTOPHER WHITE, 130467,
Plaintiff,
v.
JUDGE LILLY W. OEFFLER,
CHARLES TINGLE, District Attorney, and
JENNA REULBACH, P.C. , Attorney,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Christopher White, is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the correctional facility in Sterling, Colorado.
Mr. White, acting pro se, initiated this action by filing a Prisoner Complaint pursuant to
42 U.S.C. § 1983 challenging the validity of a state court criminal conviction. For the
reasons stated below, the action will be dismissed.
The Court must construe the Prisoner Complaint liberally because Mr. White 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 Prisoner 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.

Mr. White asserts that (1) the judge who presided over his criminal trial made
inappropriate remarks in open court; (2) the district attorney called him a liar multiple
times and threatened the State’s witnesses with prison time if they did not testify; and
(3) his attorney instructed him to participate in a polygraph test, even though she was
not present during the test, which lasted for six days. Mr. White seeks money damages
and a transfer to a “safer prison.” Compl., ECF No. 1, at 8.
Mr. White’s claims for damages may be asserted in a § 1983 action. The claims,
nonetheless, 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.
Based on Mr. White’s description of the nature of this case, it is apparent that he
has not invalidated the conviction and sentence at issue. The Court, therefore, finds
that Mr. White’s claims for damages challenging the validity of his state court criminal
resentencing are barred by the rule in Heck and must be dismissed. Although these
claims will be dismissed without prejudice, see Fottler v. United States, 73 F.3d 1064,
1065 (10th Cir. 1996), they will be dismissed for failure to state a claim, see Hafed v.
Fed. Bureau of Prisons, et al., 635 F.3d 1172 (10th Cir. 2010) (citing Davis v. Kan. Dep’t
of Corr., 507 F.3d 1246, 1248-49 (10th Cir. 2007). Because the Court is dismissing the
action for failure to state a claim, the Court will refrain from addressing Mr. White’s
request to be transferred to a safer prison.

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The Court also notes that Mr. White’s Complaint suffers from other deficiencies.
Defendant Judge Lilly W. Oeffler is absolutely immune from liability in civil rights suits
when she acts in her judicial capacity, unless she 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).
Judge Oeffler was acting in her judicial capacity when she convicted and sentenced Mr.
White; she was not acting in the clear absence of all jurisdiction. Therefore, the claims
Mr. White asserts against Judge Oeffler are barred by absolute judicial immunity.
Defendant Charles Tingle enjoys immunity from suit under 42 U.S.C. § 1983
based on his prosecutorial activities. See Imbler v. Pachtman, 424 U.S. 409, 420-24
(1976). Mr. White’s allegations against Defendant Tingle involve no more than acts that
are “ ‘intimately associated with the judicial process’ such as initiating and pursuing a
criminal prosecution.” Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir. 1990) (quoting
Imbler v. Pachtman, 424 U.S. 409, 430 (1976)), cert. denied sub nom.
Swepston v. Snell, 499 U.S. 976 (1991). Therefore, Defendant Tingle is an
inappropriate party to this action based on absolute immunity.
Defendant Jenna Reulbach, whether a private attorney or a public defender who
represented Mr. White, is not a state actor under § 1983 and is not a proper party to this
action. Polk County v. Dodson, 454 U.S. 312, 318 and 325 (1981).
Based on the above findings, the Court also certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this order is not taken in good faith, and, therefore, in
forma pauperis status is denied for the purpose of appeal. See Coppedge v. United
States, 369 U.S. 438 (1962). If Mr. White files a notice of appeal he must also pay the

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full $455.00 appellate filing fee or file a motion to proceed in forma pauperis in 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 pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), and to 28 U.S.C.
§ 1915(e)(2)(B)(ii). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

25th day of

October

, 2012.

BY THE COURT:

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

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