Thelen v. 18th Judicial Courts et al
ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pampers on appeal, by Judge Lewis T. Babcock on 4/22/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00375-BNB
18TH JUDICIAL COURTS,
18TH JUDICIAL DISTRICT ATTORNEY,
LINCOLN COUNTY COURTS,
LINCOLN COUNTY SHERIFF’S DEPUTYS,
JAMES BARTKUS, and
ORDER OF DISMISSAL
Plaintiff, Michel Thelen, initiated this action by filing pro se a Complaint (ECF No.
1). On February 12, 2014, Magistrate Judge Boyd N. Boland ordered Mr. Thelen to file
an amended complaint that clarifies who he is suing and the claims he is asserting.
Magistrate Judge Boland determined the Complaint did not comply with the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure because Mr. Thelen
failed to provide a short and plain statement of his claims showing he is entitled to relief.
Magistrate Judge Boland warned Mr. Thelen that, if he failed to file an amended
complaint that complies with the pleading requirements of Rule 8, the action would be
dismissed without further notice. On April 16, 2014, Mr. Thelen filed an amended
complaint (ECF No. 8) pursuant to 42 U.S.C. § 1983 seeking damages and unspecified
The Court must construe the amended complaint liberally because Mr. Thelen 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
discussed below, the action will be dismissed.
The Court has reviewed the amended complaint and finds that Mr. Thelen still
fails to comply with the pleading requirements of Rule 8. The twin purposes of a
pleading are to give the opposing parties fair notice of the basis for the claims against
them so that they may respond and to allow the Court to conclude that the allegations, if
proven, show that the plaintiff is entitled to relief. See Monument Builders of Greater
Kansas City, Inc. v. American Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th Cir.
1989); see also Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th
Cir. 2007) (stating that a complaint “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.”).
The requirements of Rule 8 are designed to meet these purposes. See TV
Communications Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991),
aff’d, 964 F.2d 1022 (10th Cir. 1992). Specifically, Rule 8(a) provides that a complaint
“must contain (1) a short and plain statement of the grounds for the court’s jurisdiction, .
. . (2) a short and plain statement of the claim showing that the pleader is entitled to
relief; and (3) a demand for the relief sought.” The philosophy of Rule 8(a) is reinforced
by Rule 8(d)(1), which provides that “[e]ach allegation must be simple, concise, and
direct.” Taken together, Rules 8(a) and (d)(1) underscore the emphasis placed on
clarity and brevity by the federal pleading rules. As a result, prolix, vague, or
unintelligible pleadings violate the requirements of Rule 8.
Construing the amended complaint liberally, Mr. Thelen contends that his rights
were violated in connection with his guilty plea, conviction, and ninety-day jail sentence
in case number 2011M105, a county court case in Lincoln County, Colorado. Mr.
Thelen agreed to plead guilty in the county court case to violation of a mandatory
protection order that was entered in case number 10CR36, a district court case in
Lincoln County. Mr. Thelen also alleges that his probation in case number 10CR36 was
revoked as a result of his violation of the mandatory protection order. Mr. Thelen
contends that the mandatory protection order in case number 10CR36 was vacated in
February 2012 because the district court lacked jurisdiction to impose a mandatory
protection order in that case.
The named Defendants in this action are the state courts in Lincoln County and
Colorado’s Eighteenth Judicial District, unidentified deputy sheriffs in Lincoln County,
the Office of the District Attorney for Colorado’s Eighteenth Judicial District, two district
court judges in Colorado’s Eighteenth Judicial District, a county court judge in Lincoln
County, and two district attorneys for Colorado’s Eighteenth Judicial District. Mr.
Thelen’s specific claims for relief in the amended complaint, in their entirety, are the
FIRST CLAIM FOR RELIEF AND SUPPORTING
The Plaintiff was unlawfully given a mandatory criminal
protection order in a traffic case. POISONOUS tree doctrine
SECOND CLAIM FOR RELIEF AND SUPPORTING
The plaintiff was detained, questioned without his Maranda
[sic] warning a violation of his 5th amendment rights.
THIRD CLAIM FOR RELIEF AND SUPPORTING
The plaintiff was sentenced to 90 days in jail.
FOURTH CLAIM FOR RELIEF AND SUPPORTING
Numerous individuals acting under the color of law deprived
Thelen of numerous Civil rights brought about by several
torts and malicious intent on individuals.
(ECF No. 8 at 3-4.)
Despite the specific instructions provided by Magistrate Judge Boland, Mr.
Thelen fails to provide a short and plain statement of his claims showing he is entitled to
relief. Mr. Thelen fails to allege specific facts in support of his claims and he fails to
identify against which Defendant or Defendants he is asserting each claim or what each
Defendant did that allegedly violated his rights. As a result, Mr. Thelen’s amended
complaint does not give Defendants fair notice of the specific claims being asserted
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); see also United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”);
Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991) (vague and conclusory
allegations that his rights have been violated does not entitle a pro se pleader to a day
in court regardless of how liberally the pleadings are construed), aff’d, 961 F.2d 916
(10th Cir. 1992). “[I]n analyzing the sufficiency of the plaintiff’s complaint, the court need
accept as true only the plaintiff’s well-pleaded factual contentions, not his conclusory
allegations.” Hall, 935 F.2d at 1110. Because Mr. Thelen fails to provide a clear and
concise statement of the claims he is asserting, the Court finds that the amended
complaint must be dismissed for failure to file an amended pleading that complies with
Rule 8 as directed.
In addition, Mr. Thelen may not sue many of the entities and individuals he
names as Defendants in the amended complaint. Mr. Thelen may not sue the state
courts in Lincoln County and Colorado’s Eighteenth Judicial District or the Office of the
District Attorney for Colorado’s Eighteenth Judicial District because those entities are
protected by Eleventh Amendment immunity. See Steadfast Ins. Co. v. Agricultural Ins.
Co., 507 F.3d 1250, 1252-53 (10th Cir. 2007) (noting that the Eleventh Amendment
protects states and state entities regardless of whether a plaintiff seeks declaratory or
injunctive relief or monetary damages). The Eleventh Amendment also prevents Mr.
Thelen from suing the individual state Defendants in their official capacities. See Monell
v. Department of Social Services, 436 U.S. 658, 690 n.55 (1978) (noting that official
capacity suits “generally represent only another way of pleading an action against an
entity of which an officer is an agent”).
With respect to the state court judges and district attorneys Mr. Thelen is suing in
their individual capacities, he fails to allege facts that demonstrate those individuals
acted outside the scope of their absolute immunity. Judges are absolutely immune from
liability in civil rights suits for money damages for actions taken in their judicial capacity
unless the judge was acting 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). Similarly, “acts undertaken by
a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which
occur in the course of his [or her] role as an advocate for the State, are entitled to the
protections of absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).
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 Plaintiff files a notice of appeal he also must pay the full $505 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 complaint (ECF No. 1), the amended complaint (ECF No. 8),
and the action are dismissed without prejudice pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure because Mr. Thelen failed to file a pleading that complies with
the pleading requirements of the Federal Rules of Civil Procedure. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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