Fogle v. Elliott

Filing 10

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/19/13. 6 Prisoners Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01766-BNB
RONALD JENNINGS FOGLE,
Claimant,
v.
ARCHER THOMAS ELLIOTT, JR.,
Claimee.

ORDER OF DISMISSAL

Claimant, Ronald Jennings Fogle, is a prisoner in the custody of the Colorado
Department of Corrections at the Crowley County Correctional Facility in Olney Springs,
Colorado. Mr. Fogle initiated this action by filing pro se a document titled “Claim for
Three Million, Twenty-Three Thousand Dollars and/or as the Amount Determine by the
Board of Trustees/Committee on Conduct” (ECF No. 1). Mr. Fogle seeks
reimbursement for losses he allegedly suffered as a result of malpractice and
misconduct by Archer Thomas Elliott, Jr., an attorney who represented Mr. Fogle in a
civil rights action in the District of Colorado. See Fogle v. Slack, No. 05-cv-01211-KVHCBS (D. Colo. July 20, 2010), aff’d, 419 F. App’x 860, cert. denied, 132 S. Ct. 231
(2011). The instant civil action was commenced and, on July 9, 2013, Magistrate Judge
Boyd N. Boland ordered Mr. Fogle to cure certain deficiencies if he wished to pursue his
claims in this civil action. In particular, Magistrate Judge Boland ordered Mr. Fogle to
file a Prisoner Complaint and either to pay the necessary filing fee or to file a Prisoner’s

Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915.
On July 18, 2013, in response to the order directing him to cure deficiencies, Mr.
Fogle filed a copy of the “Claim for Three Million, Twenty-Three Thousand Dollars
and/or as the Amount Determine by the Board of Trustees/Committee on Conduct”
(ECF No. 5) with different attachments and an “Affidavit” (ECF No. 4) in which he states
that he does not believe he can file a civil action because it would be barred by the
applicable statute of limitations. Instead, Mr. Fogle explains his “desire is to obtain
financial reimbursement from the Federal Board of Trustees” and that he is “inquiring to
have a Claim Form completed by the Federal Board of Trustees” to assist him in
recovering the losses he suffered as a result of Mr. Archer’s alleged misconduct in case
number 05-cv-01211-KHV-CBS. (ECF No. 4 at 1.)
On August 12, 2013, Mr. Fogle filed another copy of the “Claim for Three Million,
Twenty-Three Thousand Dollars and/or as the Amount Determine by the Board of
Trustees/Committee on Conduct” (ECF No. 9) without attachments, a copy of the
“Affidavit” (ECF No. 7), a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915 (ECF No. 6), and a separate document on the court-approved
Prisoner Complaint form that also is titled “Claim for Three Million, Twenty-Three
Thousand Dollars, and/or as the Amount Determine by the Board of
Trustees’/Committee on Conduct” (ECF No. 8). Mr. Fogle asserts jurisdiction over his
claim pursuant to Rule 252.1(a) of the Colorado Rules of Civil Procedure and Rules
83.3C.1. and 83.5F.2. of the District of Colorado civil local rules. (See ECF No. 8 at 3.)
As relief he asks “the Federal Board of Trustees’/Committee on Conduct to give me [an
award of damages] by awarding me my losses and then the Honorable Board collect
2

from Mr. Elliott because he won’t give me any of my losses he caused me.” (ECF No. 8
at 8.)
The Court must construe the papers filed by Mr. Fogle 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 act as an
advocate for a pro se litigant like Mr. Sandles. See id. For the reasons stated below,
the action will be dismissed for lack of subject matter jurisdiction.
Pursuant to Fed. R. Civ. P. 12(h)(3), the Court must dismiss an action if the Court
lacks subject matter jurisdiction.
Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial decree. It is
to be presumed that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests
upon the party asserting jurisdiction.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted).
Furthermore, the issue of subject matter jurisdiction may be raised sua sponte by the
Court at any time during the course of the proceedings. See McAlester v. United Air
Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988).
Mr. Fogle first asserts jurisdiction over his claim pursuant to Rule 252.1(a) of the
Colorado Rules of Civil Procedure. Rule 252 of the Colorado Rules of Civil Procedure
sets for the Colorado Rules of Procedure Regarding Attorneys’ Fund for Client
Protection. Rule 252.1(a), the specific rule cited by Mr. Fogle, sets forth the purpose
and scope as follows:
The purpose of the Colorado Attorney’s Fund for
Client Protection is to promote public confidence in the
3

administration of justice and the integrity of the legal
profession by mitigating losses caused by the dishonest
conduct of attorneys admitted and licensed to practice law in
the courts of this state occurring in the course of attorneyclient or court-appointed fiduciary relationship between the
attorney and the claimant.
Other rules establish a fund to mitigate losses suffered by eligible claimants, see Colo.
R. Civ. P. 252.2; establish a Board of Trustees to administer the fund and process
claims, see Colo. R. Civ. P. 252.5 - 252.7; define the claims that are eligible for
reimbursement, see Colo. R. Civ. P. 252.10; and set forth the procedures for filing and
processing claims, see Colo. R. Civ. P. 252.11 - 252.12. Although it is not clear
whether Mr. Fogle is eligible to pursue a claim for reimbursement under Rule 252 of the
Colorado Rules of Civil Procedure, that rule does not establish subject matter
jurisdiction over such a claim in federal court.
The District of Colorado civil local rules cited by Mr. Fogle also do not provide for
subject matter jurisdiction over Mr. Fogle’s claims. Pursuant to Rule 83.3C.1. of the
District of Colorado civil local rules, “[a]n attorney who applies for admission to the bar
of this court . . . consents to this court’s exercise of disciplinary jurisdiction over any
alleged misconduct.” Rule 83.5F.2. of the District of Colorado civil local rules authorizes
the District of Colorado Committee on Conduct to issue a private letter of admonition in
appropriate circumstances. In fact, Mr. Fogle alleges that the District of Colorado
Committee on Conduct issued a formal letter of admonition to Mr. Archer in response to
a complaint Mr. Fogle filed. However, neither local rule authorizes the relief Mr. Fogle
seeks in this action.
For these reasons, the action will be dismissed without prejudice for lack of

4

subject matter jurisdiction. Furthermore, 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 Plaintiff files a notice of appeal he
also must pay the full $455 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 action is dismissed without prejudice for lack of subject
matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 6) is DENIED as moot.
DATED at Denver, Colorado, this

19th day of

August

, 2013.

BY THE COURT:

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

5