Glover, III v. Bicha et al

Filing 17

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/18/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02661-GPG
JOHN T. GLOVER III,
Plaintiff,
v.
MR. REGGIE BICHA,
JOHN AND JANE DOES,
MS. SUSAN BIRCH,
MS. JOSCELYN GAY,
MS. SUSANNE BRENNAN (Negligent Supervision),
JOHN AND JANE DOES
MR. MARK EMERY,
MS. LESLIE ROTHMAN,
MS. MIA SANCHEZ-O’DELL,
JOHN AND JANE DOES,
MR. GLEN SPENCER, and
JOHN AND JANE DOES OF CHURCH OF LATTER DAY SAINTS,
Defendants.

ORDER OF DISMISSAL

I. Background
Plaintiff John T. Glover III currently resides in Boulder, Colorado. Plaintiff, acting
pro se, initiated this action by submitting to the Court a seventy-five page Complaint
with 436 attachments. On October 6, 2014, Magistrate Judge Boyd N. Boland directed
Plaintiff to amend the Complaint and comply with Fed. R. Civ. P. 8 and to either pay the
$400 filing fee or in the alternative submit an Application to Proceed Without
Prepayment of Fees and Affidavit.
On November 20, 2014, Plaintiff submitted an Application to Proceed Without
Prepaying Fees or Costs and filed an Amended Complaint. Magistrate Judge Gordon

P. Gallagher granted Plaintiff leave to proceed without prepayment of fees and costs
and directed him to file a Second and Final Amended Complaint. Specifically,
Magistrate Judge Gallagher directed Plaintiff to clarify who he is suing and to state facts
in support of his alleged constitutional rights violations. Plaintiff was told that the
Amended Complaint, although reduced to thirty pages, remains vague, conclusory, and
verbose, with repeated references to unexplained attachments. Plaintiff again was
directed to amend and comply with Rule 8 by alleging simple and concise claims for
relief that state the specific rights, which have been violated, and the specific acts by
each named Defendant who committed the violation. Plaintiff was told not to present
the description of his claims in a long, chronological recitation of facts.
On January 12, 2015, Plaintiff filed a Second and Final Verified Complaint. The
Complaint, including attachments, is 464 pages long. Plaintiff’s claims are rambling and
repetitive, and include unnecessary information in the format of a long, chronological
narrative of events. Plaintiff, therefore, again has failed to comply with Rule 8 and the
Court’s two orders to amend, ECF Nos. 5 and 12. Nonetheless, the Court will proceed
to determine the basis of Plaintiff’s claims and address the merits as follows.
First, the Court notes Plaintiff was employed by Imagine!, a residential service
provider organization, ECF No. 16-10 at 2 and 16-1 at 39, and worked as a residential
live-in counselor at the Charles Smart Home in Boulder, where he cared for individuals
with developmental disabilities, ECF No. 16-10 at 2. Plaintiff appears to challenge his
termination from his position as a result of an investigation, in which it was determined
that Plaintiff psychologically abused, neglected, and violated HIPPA and privacy rights
of a resident at the Charles Smart Home. ECF No. 16-1 at 39-40. Plaintiff has
challenged this termination in a state court case, which is identified and discussed
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below. Plaintiff now seeks to challenge the termination in this Court based on First,
Seventh, and Fourteenth Amendment rights and state court regulations and statutes.
II. Claims Presented
In the Jurisdiction section of the Second Amended Complaint, Plaintiff asserts
that this action is filed pursuant to 28 U.S.C. §§ 1331 and 1367 and 42 U.S.C. § 1983.
Plaintiff then provides a thirteen-page overview that he titles, “Other Factors Giving Rise
to This Lawsuit.” ECF No. 16 at 8-20. In the overview, Plaintiff asserts that Defendants
have violated his First Amendment right to freedom of speech, the Seventh
Amendment, and the Fourteenth Amendment. Specifically, Plaintiff asserts that
beginning on August 16, 2012, through March 24, 2014, on nine different occasions, he
provided information to Defendants Reggie Bicha, Susan Birch, Joscelyn Gay, Thomas
Miller, and Barbara Ramsey regarding the mishandling of MANE (Mistreatment, Abuse,
Neglect, and Exploitation) investigations and in particular sought redress of the results
of the investigation that affected him. ECF No. 16 at 4.
Plaintiff also states that Defendants Bicha, Birch, Gay, John and Jane Does,
Mark Emery, Mia Sanchez-O’Dell, and Leslie Rothman failed to take corrective action
pursuant to Colo. Rev. Stat. § 27-10.5 and “2 CCR 503-1" to address the “deficient”
MANE investigations, and in failing to do so violated Plaintiff’s Fourteenth Amendment
and equal protection rights. Id. at 6. Plaintiff further states that there is no grievance
provision for “Direct Care Workers” who are adversely affected by mishandled MANE
investigations. Id.
Plaintiff asks that this Court review his state court case, John T. Glover III v.
Developmental Disabilities Center (Imagine!), Thomas Stroup and Glen Spencer,
2012cv124. Id. at 6 and 26. He also refers to two cases that he pursued in the United
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States District Court for the District of Massachusetts. Glover v. Morrissey, et al., No.
03-11633-MAP (D. Mass. Sept. 28, 2004); Glover v. Comerford, et al., No. 03-30213 (D.
Mass. Sept. 28, 2004). Both of the Massachusetts cases involve Plaintiff’s attempts to
report a co-workers alleged mistreatment of persons with developmental disabilities,
and both cases were dismissed for failure to “state specific facts from which to infer
illegal motive.” Glover, No. 03-cv-30213, ECF No. 19, at 12.
Plaintiff also contends that on August 27, 2012, he sent an email to Defendant
Bicha regarding Mr. Stroup’s MANE investigations and that on August 30, September 5,
November 30, 2012 and August 23, 2013, he spoke with Thomas Miller, Director of
Program Quality of the Colorado Department of Human Services, Division for
Developmental Disabilities. Id. at 16. Plaintiff further asserts that subsequently
Defendants Bicha, Birch, Gay, John and Jane Does placed a “directive” on Thomas
Miller to deny any further review of the MANE investigations, id. at 17. Plaintiff asserts
that he then received a response on October 20, 2012, from Defendant Gay that
Plaintiff’s information had been reviewed but further review of the MANE investigation
for purposes of an employment action was beyond the scope of related statutes and
regulations. Id. at 17. Because Defendants Bicha, Martinez, Gay, and Birch’s refused
to conduct a quality review of Mr. Stroup’s MANE investigations, Plaintiff asserts he sent
a grievance letter to Defendant Gay on January 14, 2013. Id. at 18.
Finally, Plaintiff contends Defendants have conspired to obstruct his right to
redress his grievances through legal and legislative means in violation of his First,
Seventh, and Fourteenth Amendment rights. Id. at 19-20. In particular, Plaintiff asserts
Imagine! and Mr. Spencer blatantly misstated numerous facts at Plaintiff’s pretrial
proceedings and during the November 4-6, 2013 jury trial that resulted in the 20th
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Judicial District applying an incorrect legal interpretation and the dismissal of his state
case. Id. at 19-20.
Following Plaintiff’s thirteen-page statement of factors giving rise to this case,
Plaintiff sets forth the following three claims. In Claim One, Plaintiff states that the acts
and omissions of Defendants Bicha, Gay, Birch, John and Jane Does Emery, Rothman,
and Sanchez-O’Dell, which allegedly were conducted under color of state law, (Colo.
Rev. Stat. § 27-10.5 and 2 C.C.R. 503-1), and under the laws regulating the Colorado
Judicial Branch of Government, were the proximate and legal cause of the deprivation
of his First, Seventh, and Fourteenth Amendment rights. Id. at 21. In Claim Two,
Plaintiff asserts all Defendants knew that Defendant Sanchez-O’Dell and other
Imagine! witnesses committed perjury at his Unemployment Appeal Hearings on June
22, 2011, and during the subsequent trial testimony given by Defendant Sanchez-O’Dell
on November 4, 2013. Id. at 23. He further contends that the continued use of the
MANE investigation report was wrong because Direct Care Staff, including Plaintiff, had
not been trained that they were prohibited from opening resident’s mail and from using a
cell phone while driving residents. Id. In Claim Three, Plaintiff asserts that Defendants,
state entities, and other members of the Colorado legal community have conspired to
obstruct his constitutional rights to bring to the public attention the mishandled MANE
investigations and to take legal action.
Plaintiff seeks money damages. Sec. Am. Compl., ECF No. 16, at 28. He also
seeks declaratory and injunctive relief. In particular, Plaintiff requests a redress of the
mishandled MANE investigations conducted by Imagine!, based on various Colorado
statutes and Defendants’, (Bicha, Birch, Gay, Emery, Sanchez-O’Dell, and Rothman),
failure to address the improper MANE investigation. ECF No. 16 and 26-29. Plaintiff
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also requests that this Court review his state court case, Case No. 2012cv124 and
mandate the U.S. Department of Human Services to guarantee the Colorado
Department of Human Services and Health Care Policy and Financing is providing
correct oversight of the programs it manages. Plaintiff further asks that this Court
conduct oversight over state agencies to (1) make changes to the MANE investigation
process; (2) implement a grievance procedure for Direct Care Workers; and (3)
mandate the Colorado Department of Health Care Policy and Financing to fully
investigate Plaintiff’s claim that a Charles Smart Home resident was exploited regarding
the affidavit she signed on July 15, 2013.
III. Analysis
Upon review of the 435 attachments, the Court finds that a MANE investigation
was conducted by Thomas Stroup against Plaintiff for incidents involving residents at
the “Smart House” in Boulder, Colorado in February 2011, where Plaintiff was found to
have (1) violated a resident’s privacy rights by reading her mail; (2) violated the HIPPA
law by discussing an individual’s behavioral problem with an unauthorized party; (3)
engaged in aggressive physical and verbal confrontation while a resident was present to
witness; (4) used a cell phone while driving with three residents in the vehicle; and (4)
belittled a resident for paging him during the night while he was the primary live-in at the
facility. ECF No. 16-1 at 40. The basis for all of Plaintiff’s claims is the alleged
improper MANE investigation that negatively affected his professional reputation.
i. Rooker-Feldman
Plaintiff’s request that this Court review his State of Colorado Case No.
2012cv124, is precluded by the Rooker-Feldman doctrine, which provides that federal
courts, other than the United States Supreme Court, lack jurisdiction to adjudicate
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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 precludes “cases brought by statecourt losers complaining of injuries caused by state-court judgments rendered before
the district court proceedings commenced and inviting district court review and rejection
of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284
(2005); see also Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994) (stating that the
losing party in a state court proceeding is generally “barred from seeking what in
substance would be appellate review of the state court 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.”). Review of the state court judgment must proceed to the state’s
highest court and then to the United States Supreme Court pursuant to 28 U.S.C.
§ 1257. See Facio v. Jones, 929 F.2d 541, 543 (10th Cir. 1991).
The Rooker-Feldman doctrine bars not only cases seeking direct review of state
court judgments; it also bars cases 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 v. Countrywide Home
Loans, 389 F.3d 1144, 1147-48 (10th Cir. 2004). “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. Furthermore, the RookerFeldman doctrine “precludes not only review of adjudications of the state’s highest
court, but also the decisions of its lower courts.” See Jordahl v. Democratic Party of
Va., 122 F.3d 192, 199 (4th Cir. 1997).
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Plaintiff requests that this Court find his First, Seventh, and Fourteenth
Amendment rights were violated because Defendants (1) improperly determined the
results of the MANE investigation conducted against Plaintiff were correct; (2) prevented
him from redressing and making public the “organizational shortcomings” that caused
the mishandled MANE investigation through judicial, legislative, administrative, and
other legal venues; and (3) damaged Plaintiff’s professional reputation. In Case No.
2012cv124, Plaintiff asserted defamation, emotional distress, interference with
contractual relations against Mr. Spencer; defamation, “respondeat superior,” and
negligent retention and supervision against Imagine!; and negligence against Mr.
Stroup. ECF No. 16-3 at 30. To review Colorado Case No. 2012cv124 based on
Plaintiff’s claims and consider the relief he requests would disrupt or undo the state
court judgment. Therefore any federal claim that Plaintiff’s civil rights were violated with
respect to his termination, contractual interference, and defamation are inextricably
intertwined with the state court judgment and this Court lacks subject matter jurisdiction.
ii. Constitutional Claims
Second, Plaintiff’s claims asserted pursuant to the First and Seventh Amendment
rights are conclusory and vague and do not comply with Fed. R. Civ. P. 8. Plaintiff does
not identify any state or federal right that he was denied in his efforts to petition for
redress of his grievances. Plaintiff concedes he filed a lawsuit challenging the MANE
investigation and has contacted various legislative representatives and state oversight
agencies to present his claims for consideration. The denial of his claims in state court,
and the agencies refusal to readdress his claims regarding the MANE investigation
results, do not state a per se violation of the First and Seventh Amendments.
With respect to Plaintiff’s Fourteenth Amendment claim, the United States
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Constitution guarantees due process only when a person is to be deprived of life,
liberty, or property. See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994).
Plaintiff does not allege that he was deprived of life as a result of the MANE
investigation. To the extent Plaintiff is challenging his termination as a deprivation of
property right, the claim is inextricably intertwined with Plaintiff’s state court case
involving his termination from employment and barred by Rooker-Feldman. He,
therefore, is entitled to procedural protections only if he was deprived of a liberty
interest. The existence of a liberty interest depends upon the nature of the interest
asserted. Even if the Court construes Plaintiff’s request for a grievance procedure, by
which he may redress an alleged regulatory deficiency in a MANE investigation, as a
liberty interest claim, he provides no basis for finding that this interest suggests a liberty
interest based on the Fourteenth Amendment.
If any rights exist they would be dependent on finding that “state law has created
an interest substantial enough to rise to the level of a “liberty interest.’ ” Montero v.
Meyer, 13 F.3d 1444, 1446 (10th Cir. 1994). “[A] state creates a protected liberty
interest by placing substantive limitations on official discretion.” Kentucky Dep’t of
Corrections v. Thompson, 490 U.S. 454, 461 (1989) (internal quotation marks omitted)
(quoting Olin v. Wakinekona, 461 U.S. 238, 249 (1983)). “The substantive limitations
work to create the ‘legitimate claim of entitlement’ giving rise to a constitutional right.”
Montero, 13 F.3d at 1448 (citing Board of Regents of State Colleges v. Roth, 408 U.S.
564, 577 (1972). Because Plaintiff concedes there is no current Colorado regulatory
structure that provides a grievance process for an individual to challenge a MANE
investigation, Plaintiff fails to assert a Fourteenth Amendment violation. ECF No. 16 at
6.
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iii. Mandated Relief
Third, Plaintiff asserts no basis for this Court’s jurisdiction to mandate the U.S.
Department of Human Services to oversee and direct the Colorado Department of
Human Services and Health Care Policy and Financing to regulate the investigations
and termination of employees of an organization that assists people with intellectual and
developmental disabilities. Pursuant to 28 U.S.C. § 1361, the district courts have
original jurisdiction only of actions 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 Plaintiff.
This Court finds no duty owed to Plaintiff regarding the MANE investigation or a
grievance procedure to challenged the investigation.
IV. Conclusion
This Court lacks subject matter jurisdiction to review Plaintiff’s claims as they
pertain to defamation, emotional distress, interference with contractual relations against
Mr. Spencer; defamation, “respondeat superior,” and negligent retention and
supervision against Imagine!; and negligence against Mr. Stroup. Furthermore,
Plaintiff’s First, Seventh, and Fourteenth Amendment claims based on the above
findings are legally frivolous and subject to dismissal pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i).
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not 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 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.
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Accordingly, it is
ORDERED that the action is dismissed in part without prejudice for lack of
subject matter jurisdiction and in part as legally frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 18th

day of

February

BY THE COURT:

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

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, 2015.