Simpson v. Allison et al

Filing 5

ORDER Directing Plaintiff to File Amended Complaint, by Magistrate Judge Craig B. Shaffer on 8/06/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02073-BNB
NORMAN SIMPSON,
Plaintiff,
v.
MARK ALLISON, Individually and in his Official Capacity, Parole Officer of the Colorado
Department of Corrections,
SHAWN DEEINGO, Individually and in his Official Capacity, Parole Officer Supervisor of
the Colorado Department of Corrections,
WENDY KENDALL, Individually and in her Official Capacity, Parole Officer Supervisor
of the Colorado Department of Corrections,
TIM HAND, Individually and in his Official Capacity, Director of Adult Parole of the
Colorado Department of Corrections,
BIJOU TREATMENT & TRAINING INSTITUTE, Individually and in its Official Capacity,
Contractor with the Colorado Department of Corrections,
BI INCORPORATED, Individually and in its Official Capacity, Contractor with the
Colorado Department of Corrections,
RICK RAEMISCH, Individually and in his Official Capacity, Executive Director of the
Colorado Department of Corrections,
JOHN DOE, Individually and in his Official Capacity, Administrative Hearing Officer’
Under Contract with the Colorado Board of Parole, and
The COLORADO BOARD OF PAROLE AND EACH OF ITS MEMBERS, Individually
and in their Official Capacities as Members of the Colorado Board of Parole,
Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

Plaintiff Norman Simpson currently is detained at the El Paso Criminal Justice
Center in Colorado Springs, Colorado. Plaintiff, acting pro se, initiated this action by
filing a Prisoner Complaint pursuant to 42 U.S.C. § 1983 alleging that his civil rights
were violated in connection with a pending revocation of his parole. As relief he seeks
declaratory and injunctive relief and money damages. He has been granted leave to

proceed pursuant to 28 U.S.C. § 1915.
The Court must construe the Complaint liberally because Plaintiff 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 should not be an advocate
for a pro se litigant. See id. For the reasons discussed below, Plaintiff will be ordered
to file an Amended Complaint if he wishes to pursue his claims in this action.
The Court has reviewed the Complaint and finds that it is deficient for various
reasons.
Plaintiff asserts that he currently is subject to a revocation of his parole, but the
revocation should be enjoined because he did not receive a sex offender evaluation
from the Colorado Department of Corrections at the time of his release on parole in
violation of Color. Rev. Stat. §§ 16-11.7-104 and 105(1) and the parole board also failed
to accord full faith and credit to the State of Kansas sex offender evaluation that was
conducted pursuant to a sexual battery conviction that occurred in Kansas in 1997.
Plaintiff seeks injunctive relief prohibiting the revocation of his parole and declaratory
relief requiring a sex offender evaluation. Plaintiff also seeks money damages.
Regardless of the relief sought, Plaintiff may not sue the Colorado Parole Board.
The State of Colorado and its entities, such as the Colorado Parole Board, are
protected by Eleventh Amendment immunity. See Will v. Michigan Dep't of State
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Police, 491 U.S. 58, 66 (1989); Meade v. Grubbs, 841 F.2d 1512, 1525-26 (10th Cir.
1988). “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), overrruled on other grounds by Ellis v. University of Kansas Med.
Ctr., 163 F.3d 1186 (10th Cir. 1998). The State of Colorado has not waived its Eleventh
Amendment immunity, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir.
1988), and congressional enactment of § 1983 did not abrogate Eleventh Amendment
immunity, see Quern v. Jordan, 440 U.S. 332, 340-345 (1979). The Eleventh
Amendment applies to all suits against the state and its agencies, regardless of the
relief sought. See Higganbotham v. Okla. Transp. Comm'n, 328 F.3d 638, 644 (10th
Cir. 2003).
Plaintiff also may not sue parole board members for money damages. Parole
board members enjoy absolute immunity from damages liability for actions taken in the
performance of the board’s official duties regarding the granting or denying of parole.
Russ v. Uppah, 972 F.2d 300, 303 (10th Cir. 1992).
To the extent that Plaintiff challenges the revocation of his parole, he is seeking
habeas corpus relief. If Plaintiff wishes to challenge the validity of the revocation, he
may do so in a separate action in this Court only by filing an application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. “The essence of habeas corpus is an
attack by a person in custody upon the legality of that custody, and . . . the traditional
function of the writ is to secure release from illegal custody.” See Preiser v. Rodriguez,
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411 U.S. 475, 484 (1973).
As for Defendants’ failure to perform a sex offender evaluation prior to his
release, Plaintiff “must explain what each defendant did to him or her; when the
defendant did it; how the defendant’s action harmed him or her; and, what specific legal
right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). The general rule that pro se pleadings
must be construed liberally has limits and “the court cannot take on the responsibility of
serving as the litigant’s attorney in constructing arguments and searching the record.”
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Plaintiff further is advised that § 1983 “provides a federal cause of action against
any person who, acting under color of state law, deprives another of his federal rights.”
Conn v. Gabbert, 526 U.S. 286, 290 (1999); see also Wyatt v. Cole, 504 U.S. 158, 161
(1992) (“[T]he purpose of § 1983 is to deter state actors from using the badge of their
authority to deprive individuals of their federally guaranteed rights and to provide relief
to victims if such deterrence fails.”). Therefore, Plaintiff should name as defendants in
his Amended Complaint only those persons that he contends actually violated his
federal constitutional rights. Accordingly, it is
ORDERED that within thirty days from the date of this Order Plaintiff file an
Amended Prisoner Complaint that complies with the directives discussed in this
Order. It is
FURTHER ORDERED that Plaintiff shall obtain the Court-approved Prisoner
Complaint form (with the assistance of his case manager or the facility’s legal assistant),
along with the applicable instructions, at www.cod.uscourts.gov. It is
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FURTHER ORDERED that, if Plaintiff fails to file an Amended Prisoner
Complaint that complies with this Order within the time allowed, the Complaint and
action will be dismissed without further notice.
DATED at Denver, Colorado, this 6th day of

August

BY THE COURT:
s/ Craig B. Shaffer
United States Magistrate Judge

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, 2013.