Roderick v. State of Colorado et al

Filing 7

ORDER to Dismiss in Part and to Draw Case to a Presiding Judge. Claim three asserted against the State of Colorado and the Colorado Department of Corrections is dismissed. Remaining claims one and two and the case aredrawn to a presiding judge and, if appropriate, to a magistrate judge. By Judge Lewis T. Babcock on 5/1/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01006-BNB
DONALD RODERICK,
Plaintiff,
v.
STATE OF COLORADO,
COLORADO DEPARTMENT OF CORRECTIONS,
GATBEL N. CHAMJOCK, PA, and
HELENE CHRISTNER, PA,
Defendants.

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

Plaintiff, Donald Roderick, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) at the correctional facility in Sterling, Colorado. He
submitted pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983 that
also asserts supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) over state-law
claims. He asks for money damages and injunctive relief.
Mr. Roderick 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. Roderick 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. Roderick’s 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.
Plaintiff contends he suffers from a cardiac condition. As his first claim, he
complains that a followup medical appointment for that condition was cancelled by the
DOC’s insurance provider, Physician Health Partners, and his request of January 25,
2014, for a refill of certain medication was denied until February 20, 2014, causing him
to stop and restart the medication contrary to doctor’s orders and placing him in
jeopardy of a reoccurring cardiac arrest. On the basis of these allegations, he asserts
that physician assistants, Gatbel N. Chamjock and Helene Christner, have been
deliberately indifferent under the Eighth Amendment to his serious medical needs.
As his second claim, he alleges that physician assistants, Gatbel N. Chamjock
and Helene Christner, have been negligent in caring out his physician’s medical orders
concerning his cardiac treatment and aftercare. As his third claim, he contends the
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State of Colorado and the DOC have been negligent in making sure their employees
provide him with a reasonable level of medical care.
Mr. Roderick may not sue the State of Colorado or 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
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 third claim asserted against the State of Colorado and
the DOC will be dismissed, and these Defendants will be dismissed as parties to this
lawsuit.
Accordingly, it is
ORDERED that claim three asserted against the State of Colorado and the
Colorado Department of Corrections is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)
as legally frivolous. It is
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FURTHER ORDERED that the clerk of the Court remove the State of Colorado
and Colorado Department of Corrections as parties to this lawsuit. It is
FURTHER ORDERED that remaining claims one and two 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 Gatbel N.
Chamjock and Helene Christner.
DATED at Denver, Colorado, this

1st

day of

May

, 2014.

BY THE COURT:

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

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