Blackfeather v. Wheeler et al

Filing 38

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/13/15. Plaintiff's motion for a temporary restraining order 9 is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02566-GPG
MICAH BLACKFEATHER,
Plaintiff,
v.
CHRISTY WHEELER,
JASON KORN,
DAVID KENNEDY,
JOHN LEWELLYNG,
WILLIAM RAYMOND MILLER,
MIGUEL FLORES,
KELLY ADAMS,
KEVIN BERNARD HILLIARD,
CARRIE LOUISE ADAMS,
TYLER ADAMS,
EMILIA NORIEGA,
ABEL JIMENEZ,
HILARIA JIMENEZ, and
VALERIE HEALD,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Micah Blackfeather, is being detained at the Colorado Mental Health
Institute at Pueblo, Colorado (“CMHIP”). Mr. Blackfeather initiated this action by filing
pro se a Prisoner Complaint (ECF No. 1). On September 29, 2014, Magistrate Judge
Boyd N. Boland ordered Mr. Blackfeather to file an amended complaint that complies
with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. On
January 30, 2015, after being granted multiple extensions of time, Mr. Blackfeather filed
an amended Prisoner Complaint (ECF No. 37).

Mr. Blackfeather has been granted leave to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915. Therefore, the Court must dismiss the action if Mr. Blackfeather’s
claims are frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). 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. See Neitzke v. Williams, 490 U.S.
319, 327-28 (1989). For the reasons stated below, the Court will dismiss the action as
legally frivolous.
The Court must construe the amended Prisoner Complaint liberally because Mr.
Blackfeather 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 amended
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 be an advocate for a pro se litigant. See id.
Mr. Blackfeather alleges that he was arrested on August 21, 2013, and that
criminal charges still are pending against him in two cases in the Boulder County,
Colorado, District Court. He further alleges that he has been transferred to CMHIP for a
competency evaluation. The named Defendants are three Longmont, Colorado, police
officers who allegedly authored police reports regarding the events of August 21, 2013,
and eleven other private citizens who allegedly provided statements or evidence to the
Longmont police officers regarding the events of August 21, 2013. Mr. Blackfeather
insists that he did not commit any crimes.
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Mr. Blackfeather asserts three claims for relief pursuant to 42 U.S.C. § 1983 in
the amended Prisoner Complaint. He alleges in his first claim that Longmont police
officers Christy Wheeler, Jason Korn, and David Kennedy authored false police reports
regarding the events of August 21, 2013, and that, as a result of the false police reports,
he was arrested and charged with various crimes. Mr. Blackfeather also includes
allegations within claim one regarding the ongoing state court proceedings and his
confinement and treatment at CMHIP that are not relevant to his claims against
Defendants in this action.
Mr. Blackfeather asserts his second claim against the private citizens who
provided witness statements to the Longmont police officers. Mr. Blackfeather alleges
in support of claim two that “[t]he statements of these witnesses and victims [are]
falsified statements, either because they did not lawfully give statements or [because]
they did not speak with the police officers at all.” (ECF No. 37 at 9.)
Mr. Blackfeather’s third claim is identified as a false imprisonment claim. He
alleges in support of claim three that “[t]he claims 1 and 2 have resulted in all who are
included in the complaint depriving Plaintiff of his constitutional rights, deprived Plaintiff
of his liberties and by using the false statements on a falsified police report falsely
imprisoned Plaintiff violating his constitutional right[s] 4, 5, 6, 8, 9, 10 and 14.” (Id. at 10
(capitalization altered).)
The Court notes initially that, to the extent Mr. Blackfeather may be contending
his continuing confinement at CMHIP violates his constitutional rights, he fails to allege
facts that demonstrate any of the named Defendants are responsible for his continuing
confinement. He also fails to allege facts that would allow him to recover damages for
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his continuing confinement based on his claims of false arrest and false imprisonment.
See McNally v. Colorado State Patrol, 122 F. App’x 899, 903 (10th Cir. 2004) (quoting
Heck v. Humphrey, 412 U.S. 477, 484 (1994), for the proposition that “the torts of false
arrest and false imprisonment permit damages only for ‘the time of detention up until
issuance of process or arraignment, but not more.’”).
The Court next will address Mr. Blackfeather’s constitutional claims against the
private citizens who provided statements or evidence to the Longmont police officers
regarding the events of August 21, 2013. Section 1983 “provides a federal cause of
action against any person who, acting under color of state law, deprives another of his
federal rights.” Conn v. Gabbert, 526 U.S. 286, 290 (1999); see also Wyatt v. Cole, 504
U.S. 158, 161 (1992) (“[T]he purpose of § 1983 is to deter state actors from using the
badge of their authority to deprive individuals of their federally guaranteed rights and to
provide relief to victims if such deterrence fails.”). Thus, Mr. Blackfeather may assert
his constitutional claims only against persons who were acting under color of state law.
Mr. Blackfeather fails to allege facts that demonstrate the eleven private citizens
who provided statements or evidence to the Longmont police officers regarding the
events of August 21, 2013, were acting under color of state law. “The mere furnishing
of information to police officers does not constitute joint action under color of state law
which renders a private citizen liable under § 1983.” Benavidez v. Gunnell, 722 F.2d
615, 618 (10th Cir. 1983). Therefore, Mr. Blackfeather’s constitutional claims against the
eleven private citizens who provided statements or evidence to the Longmont police
officers regarding the events of August 21, 2013, are legally frivolous and must be
dismissed.
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The Court next will address Mr. Blackfeather’s claims against the three Longmont
police officers who were acting under color of state law. The claims against the
Longmont police officers are legally frivolous because Mr. Blackfeather fails to allege
facts that support an arguable constitutional claim against them. As Mr. Blackfeather
was advised in the order directing him to file an amended complaint, vague and
conclusory allegations that his federal constitutional rights have been violated do not
entitle a pro se pleader to a day in court, regardless of how liberally the court construes
such pleadings. See Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991), aff’d,
961 F.2d 916 (10th Cir. 1992). Furthermore, 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). Thus, “in
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.
Mr. Blackfeather apparently contends his constitutional rights were violated by
the three Longmont police officers because he was arrested without probable cause.
“Probable cause exists if, ‘at the moment the arrest was made . . . the facts and
circumstances within [the officers’] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in believing that the
[suspect] had committed or was committing an offense.’” Painter v. City of
Albuquerque, 383 F. App’x 795, 798 (10th Cir. 2010) (quoting Beck v. Ohio, 379 U.S. 89,
91 (1964) (alterations in original)). However, other than vague and conclusory
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allegations that the witness statements provided to the police officers were false
because he did not commit the crimes charged, Mr. Blackfeather fails to provide specific
factual allegations that demonstrate the three Longmont police officers arrested him
without probable cause or otherwise violated his constitutional rights. Mr. Blackfeather’s
allegations regarding the proceedings in his pending criminal cases also do not
demonstrate he was arrested without probable cause or that his constitutional rights
somehow were violated by the three Longmont police officers.
For these reasons, Mr. Blackfeather’s constitutional claims will be dismissed as
legally frivolous. To the extent the amended Prisoner Complaint could be construed as
asserting a tort claim under Colorado state law, the Court declines to exercise
supplemental jurisdiction over any state law claims because the constitutional claims
over which the Court has original jurisdiction will be dismissed. See 28 U.S.C. §
1367(c)(3).
The Court also 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, the amended Prisoner Complaint, and
the action are dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). 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. It is
FURTHER ORDERED that Plaintiff’s motion for a temporary restraining order
(ECF No. 9) is denied as moot.
DATED at Denver, Colorado, this 13th

day of

February

, 2015.

BY THE COURT:

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

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