Lounger Entertainment LLC v. Pueblo County Judicial Department

Filing 22

ORDER of dismissal. ORDERED that the Prisoner Complaint 9 and the action aredismissed for lack of subject matter jurisdiction. By Judge Lewis T. Babcock on 10/31/2014. (tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01928-BNB
FERNANDO L. CARRILLO,
Plaintiff,
v.
PUEBLO COUNTY JUDICIAL DEPARTMENT,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Fernando L. Carrillo, is an inmate at the Pueblo County Detention
Center in Pueblo, Colorado. Mr. Carrillo has filed pro se a Prisoner Complaint (ECF No.
9) pursuant to 42 U.S.C. § 1983. The Court must construe the Prisoner Complaint
liberally because Mr. Carrillo 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 Prisoner 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 act as an advocate for a pro se litigant. See id.
Pursuant to Fed. R. Civ. P. 12(h)(3), the Court must dismiss an action if the Court
lacks subject matter jurisdiction. The issue of subject matter jurisdiction may be raised
sua sponte by the Court at any time during the course of the proceedings. See

McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988). “The party
seeking to invoke the jurisdiction of a federal court must demonstrate that the case is
within the court’s jurisdiction.” United States v. Bustillos, 31 F.3d 931, 933 (10th Cir.
1994).
The instant action arises out of a state court criminal case. Mr. Carrillo describes
the nature of this action in the Prisoner Complaint as follows:1
Since 4-16-04 I have been having the Civil Rights of my
Business Claims Violated and Pueblo County Judicial
Departments been unlawfully Wrongfully Creating a
Misleading Criminal History against Me by Conspiracey like
this time in Case #13CR1171 they Maliciously Prosecuted
me Defaming my Character with no Evidence backing up
Hearsay but yet Hearsay Shows I got Robbed and they still
Inposed a Sentance on me outa Discrimination Malice not
taking Judicial Notice of my carreers Labor – Employment
Claims of what Iv been Pointing out.
(ECF No. 9 at 3.) Mr. Carrillo specifically asserts one claim for relief asserting a
deprivation of his civil rights and he alleges the following in support of that claim:
Dating Back to 4-16-04 Pueblo County Judicial Building has
been Depriving My Businesses Rights My Claims in Defence
of my Business by not taking Judicial Notice of my Career or
Fully Explore my Cases of what I might Point out in my
Evidence of Defence That would support the Courts
Determination weather it might be Related to my Business to
Refer to or not.
(ECF No. 9 at 4.) Mr. Carrillo seeks damages as relief.
Although the specific claim for relief Mr. Carrillo is asserting is not clear, it is clear
that the Court lacks subject matter jurisdiction because the Eleventh Amendment

1

The passages from the Prisoner Complaint are quoted verbatim without correcting or identifying
errors in grammar or spelling.

2

prevents Mr. Carrillo from suing a state court or judicial department for damages
pursuant to 42 U.S.C. § 1983. See Will v. Michigan Dep’t of State Police, 491 U.S. 58,
66 (1989). “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).
The State of Colorado has not waived its Eleventh Amendment immunity. See
Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988) (per curiam). Furthermore,
congressional enactment of 42 U.S.C. § 1983 did not abrogate Eleventh Amendment
immunity. See Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1195-96 (10th Cir. 1998).
Therefore, Mr. Carrillo’s claim is barred by the Eleventh Amendment and the Prisoner
Complaint must be dismissed for lack of subject matter jurisdiction.
Furthermore, 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 Prisoner Complaint (ECF No. 9) and the action are
dismissed for lack of subject matter jurisdiction. It is

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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 31st

day of

October

, 2014.

BY THE COURT:

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

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