Rivers, Jr v. State of Colorado et al

Filing 4

ORDER Of Dismissal. The Complaint (ECF No. 1 ) and the action are dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied. Any pending motions are denied as moot. By Judge Lewis T. Babcock on 7/11/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01899-BNB
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
BERNARD KENNETH RIVERS, JR.-EL, and
TRACI DAWN HAMILTON-RIVERS,
Plaintiffs,
v.
STATE OF COLORADO, and
CITY OF GREELEY,
Defendants.

ORDER OF DISMISSAL

Plaintiffs, Bernard Kenneth Rivers, Jr.-El, and Traci Dawn Hamilton-Rivers,
reside in Greeley, Colorado. They initiated the instant purported class action by filing
pro se a Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983 and 18 U.S.C. §§ 4, 241,
241, 1001, 1204, 1513, and 3771 that is not on the Court-approved form and a Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 2) completed
and filed only by Mr. Rivers. Mrs. Rivers has failed to complete and file a § 1915 motion
and affidavit. Plaintiffs seek money damages as well as declaratory and injunctive relief.

The Court must construe Plaintiffs’ Complaint liberally because they are 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. The Court may take judicial
notice of its own records and files that are part of the Court’s public records. See St.
Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.
1979). The Court will not direct Plaintiffs to cure the deficiencies in this action because,
for the reasons stated below, the Complaint will be dismissed.
Plaintiffs’ ninety-three page Complaint, including attachments, is unnecessarily
verbose, rambling, repetitive, vague, and conclusory. Plaintiffs request that “an
impartial court review and vacate a void order from City of Greeley Municipal Court.”
ECF No. 1 at 1. Plaintiffs cite to various state court case numbers, Nos. 13-cv-152, 13cv-65, 13-T-4848, 13-cv-60, CR-2014-00707321, but fail to clarify which of these state
actions they are challenging. They attach a document in City of Greeley v. Bernard
Rivers, No. CR 2014-0070320, asserting that the original charges against Mr. Rivers
occurred on January 6, 2014, in the County of Weld in the City of Greeley alleging a
safety belt violation regarding the passenger of the vehicle in violation of the Greeley
Municipal Code. ECF No. 1 at 59.
Plaintiffs clearly want this Court to reverse state court proceedings, which they
contend violated their rights to equal protection and due process.
To the extent Plaintiffs ask this Court to review and reverse the state court
decisions, the Court may not do so. The Rooker-Feldman doctrine provides that federal
courts, other than the United States Supreme Court, lack jurisdiction to adjudicate
claims seeking review of state court judgments. See District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462, 486 (1983); Rooker v. Fidelity Trust Co., 263 U.S.
413, 415-16 (1923). The Rooker-Feldman doctrine prohibits “a party losing in state
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court . . . from seeking what in substance would be appellate review of the state
judgment in a United States district court, based on the losing party's claim that the
state judgment itself violates the loser's federal rights.” Knox v. Bland, 632 F.3d 1290,
1292 (10th Cir. 2011) (internal quotation marks and citation omitted); see also
Crutchfield v. Countrywide Home Loans, 389 F.3d 1144, 1147 (10th Cir. 2004). The
Rooker-Feldman doctrine also bars claims that are “inextricably intertwined” with a prior
state court judgment. See Feldman, 460 U.S. at 482 n.16. “To determine whether a
federal plaintiff’s claim is inextricably intertwined with a state court judgment, [the Court]
must pay close attention to the relief the plaintiff seeks.” Crutchfield, 389 F.3d at 114748. “Where a plaintiff seeks a remedy that would disrupt or undo a state court
judgment, the federal claim is inextricably intertwined with the state court judgment.” Id.
at 1148 (internal quotation marks omitted); see also Mann v. Boatright, 477 F.3d 1140,
1147 (10th Cir. 2007) (claim is “inextricably intertwined” with the state court judgment
where success in federal district court would require court “to review and reject” that
judgment).
If no final judgment had been entered in the state court actions, this Court still
must abstain from exercising jurisdiction over claims asking the Court to intervene in
ongoing state proceedings pursuant to Younger v. Harris, 401 U.S. 37, 44 (1971).
To the extent Plaintiffs ask this Court to compel the state courts to vacate their
orders, they are seeking relief in the nature of mandamus. Pursuant to 28 U.S.C. §
1361, the district courts have original jurisdiction of any action in the nature of
mandamus to compel an officer or employee of the United States or any agency thereof
to perform a duty owed to the plaintiff. The common-law writ of mandamus, as codified
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in § 1361, is intended to provide a remedy for a plaintiff only if he or she has exhausted
all other avenues of relief and only if the defendant owes him a clear nondiscretionary
duty. Heckler v. Ringer, 466 U.S. 602, 616 (1984); see also Pittston Coal Group v.
Sebben, 488 U.S. 105, 121 (1988) (mandamus will “issue only to compel the
performance of a clear nondiscretionary duty.”) “Mandamus is a drastic remedy,
available only in extraordinary circumstances. Furthermore, the writ is not available
when review by other means is possible.” W. Shoshone Bus. Council v. Babbitt, 1 F.3d
1052, 1059 (10th Cir. 1993) (citations omitted). “To grant mandamus relief, the court
must find (1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and
preemptory duty on the part of the defendant to do the action in question; and (3) no
other adequate remedy is available.” Wilder v. Prokop, 846 F.2d 613, 620 (10th Cir.
1988).
In the instant action, Plaintiffs have not presented the Court with an extraordinary
situation mandating mandamus relief. They have no clear right to the relief sought, the
named Defendants do not owe them a clear nondiscretionary duty, and they do not
allege that no other adequate remedy is available.
Plaintiffs lack standing to assert violations of criminal law. Courts universally
endorse the principle that private citizens cannot prosecute criminal actions. See, e.g.,
Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per curiam); Connecticut Action Now,
Inc. v. Roberts Plating Co., 457 F.2d 81, 86-87 (2d Cir. 1972) (“It is a truism, and has
been for many decades, that in our federal system crimes are always prosecuted by the
Federal Government, not as has sometimes been done in Anglo-American jurisdictions
by private complaints.”); Winslow v. Romer, 759 F. Supp. 670, 673 (D. Colo.1991)
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(“Private citizens generally have no standing to institute federal criminal proceedings.”).
Plaintiffs lack standing to invoke the authority of United States attorneys under 28
U.S.C. § 547 to prosecute for offenses against the United States.
Finally, Plaintiffs are suing improper parties. 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). Therefore, Plaintiffs
may not sue the State of Colorado.
Local governments, such as the City of Greeley, can be liable under 42 U.S.C. §
1983 “only for their own illegal acts.” Connick v. Thompson, 131 S. Ct. 1350, 1359
(2011) (internal quotation marks and citations omitted) (emphasis in original). “They are
not vicariously liable under § 1983 for their employees’ actions.” Id. Therefore,
municipalities, such as the City of Greeley, are not liable under § 1983 solely because
their employees inflict injury on a plaintiff. Monell v. New York City Dep’t of Social
Servs., 436 U.S. 658, 694 (1978); Hinton v. City of Elwood, Kan., 997 F.2d 774, 782
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(10th Cir. 1993). To establish liability, a plaintiff must show that a policy or custom
exists and that there is a direct causal link between the policy or custom and the injury
alleged. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). Plaintiffs cannot
state a claim for relief against the City of Greeley under § 1983 merely by pointing to
isolated incidents. See Monell, 436 U.S. at 694. They fail to cite clearly to any policy
that caused them injury. Since they have not named a defendant who has committed a
constitutional violation, they cannot not provide the nexus required for municipal liability
under § 1983 to attach. See Ellis ex rel. Estate of Ellis v. Ogden City, 589 F.3d 1099,
1104-05 (10th Cir. 2009) (observing that municipal “liability will not attach where there
was no underlying constitutional violation by any of the municipality’s officers” (brackets
and internal quotation marks omitted)). The municipal liability claim fails.
The Complaint and the action will be dismissed without prejudice for lack of
subject matter jurisdiction pursuant to the Rooker-Feldman doctrine or, if applicable
Younger abstention.
Finally, the Court certifies pursuant to § 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 Plaintiffs file a notice of appeal they also must pay the full $505.00 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) and the action are dismissed without
prejudice for lack of subject matter jurisdiction pursuant to the Rooker-Feldman doctrine
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or, if applicable, Younger abstention. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 11th day of

July

, 2014.

BY THE COURT:

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

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