Banks v. Colorado Dept. of Corrections et al

Filing 23

ORDER to Dismiss In Part and to Draw Case to a Presiding Judge. The claims asserted against the Colorado Department of Corrections, Warden A. Medina, and Assistant Warden R. Wager are dismissed. Remaining claims and the case are drawn to a presiding judge and, if appropriate, to a magistrate judge. By Judge Lewis T. Babcock on 5/7/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02599-BNB
TORREY V. BANKS,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
A. MEDINA (Warden at FCF),
R. WAGER (Assistant Warden at FCF),
CAPTAIN KATZENMEYER,
STEPHANIE ENGLAR (FCF Mental Health Counselor),
J. SCOLLARD (Acting FCF Mental Health Supervisor),
C. SOARES (Assistant Warden at CSP),
CAPT. ARGUELLO (CSP Mail room Supervisor),
SGT. CROSLEY,
C/O MALEBRANCHE, and
CAPTAIN QUATTLEBAUM,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE TO A PRESIDING JUDGE

Plaintiff, Torrey V. Banks, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) at the correctional facility in Sterling, Colorado. He
has filed pro se a third and final amended Prisoner Complaint pursuant to 42 U.S.C. §
1983 (ECF No. 22). He asks for money damages and injunctive and declaratory relief.
Mr. Banks 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).
Mr. Banks 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. Banks’ third and final amended Prisoner Complaint
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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
For the reasons stated below, the Prisoner Complaint will be dismissed in part pursuant
to 28 U.S.C. § 1915(e)(2)(B) as legally frivolous.
Mr. Banks asserts four disorganized and redundant claims premised on his 495day placement in administrative segregation and transfer to the Colorado State
Penitentiary.
Mr. Banks is suing an improper party. He may not sue the DOC. The State of
Colorado and its entities are protected by Eleventh Amendment immunity. See Will v.
Michigan Dep't of State 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
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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). The claims asserted against the DOC will be dismissed, and
this Defendant will be dismissed as a party to this lawsuit.
Mr. Banks is suing A. Medina, warden at Fremont Correctional Facility, and R.
Wager, assistant warden at Fremont Correctional Facility, for denying the appeal from
his disciplinary conviction. Mr. Banks cannot maintain claims against prison officials or
administrators, such as Warden Medina and Assistant Warden Wager, on the basis that
they denied his grievance appeal. The “denial of a grievance, by itself without any
connection to the violation of constitutional rights alleged by plaintiff, does not establish
personal participation under § 1983.” Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th
Cir. 2009); see also Whitington v. Ortiz, No. 07-1425, 307 F. App’x. 179, 193 (10th Cir.
Jan. 13, 2009) (unpublished) (stating that “the denial of the grievances alone is
insufficient to establish personal participation in the alleged constitutional violations.”)
(internal quotation marks and citation omitted); Stewart v. Beach, 701 F.3d 1322, 1328
(10th Cir. 2012) (denial of a grievance appeal is insufficient for § 1983 liability).
Accordingly, it is
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ORDERED that the claims asserted against the Colorado Department of
Corrections, Warden A. Medina, and Assistant Warden R. Wager are dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B) as legally frivolous. It is
FURTHER ORDERED that the clerk of the Court remove the Colorado
Department of Corrections, A. Medina, and R. Wager as parties to this lawsuit. It is
FURTHER ORDERED that remaining claims and the case are drawn to a
presiding judge and, if appropriate, to a magistrate judge. It is
FURTHER ORDERED that the only remaining Defendants are Captain
Katzenmeyer, Stephanie Englar, J. Scollard, C. Soares, Captain Arguello, Sergeant
Crosley, Correctional Officer Malbranche, and Captain Quattlebaum.
DATED at Denver, Colorado, this 7th

day of

May

, 2014.

BY THE COURT:

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

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