Zunogama v. Raemisch et al

Filing 13

ORDER to Dismiss in Part and to Draw Case by Judge Lewis T. Babcock on 1/22/15. Defendants Rick Raemisch and Ed Caley are dismissed. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03013-GPG
SALVADOR ZUNOGAMA,
Plaintiff,
v.
RICK RAEMISCH, in his official capacity as Executive Director of the Colorado
Department of Corrections,
ED CALEY, in his official capacity as Warden of the Trinidad Correctional Facility,
JOSEPH M. VIGIL, in his official and personal capacity,
CORRECTIONAL OFFICER MATEO (last name unknown), in his official and personal
capacity, and
CORRECTIONAL OFFICER APODACA (last name unknown), in his official,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE

Plaintiff, Salvador Zunogama, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) at the Crowley County Correctional Facility in Olney
Springs, Colorado. Mr. Zunogama has filed pro se a Prisoner Complaint (ECF No. 1)
pursuant to 42 U.S.C. § 1983 claiming his rights under the United States Constitution
have been violated. He seeks damages as relief.
The Court must construe the Prisoner Complaint liberally because Mr. Zunogama
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 be an advocate for a pro se litigant. See id.
Pursuant to 28 U.S.C. § 1915A, the Court must review Mr. Zunogama’s claims in
the Prisoner Complaint because he is a prisoner and he is seeking redress from officers
or employees of a governmental entity. Section 1915A(b) requires dismissal of the
Prisoner Complaint, or any portion of the Prisoner Complaint, that is frivolous. 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, 324 (1989). For the reasons stated below, the Court
will dismiss the Prisoner Complaint in part as legally frivolous pursuant to § 1915A(b).
Mr. Zunogama’s claims in the Prisoner Complaint stem from an incident that
occurred while he was incarcerated at the Trinidad Correctional Facility. He alleges that
he dislocated his shoulder when he was subjected to excessive physical force by
Joseph M. Vigil on March 4, 2014, while he was being escorted to the maximum
security housing unit by correctional officers Mateo and Apodaca. Mr. Zunogama
further alleges that correctional officers Mateo and Apodaca failed to intervene and
protect him. Mr. Zunogama is suing Defendants Vigil, Mateo, and Apodaca in both their
official and personal capacities.1 He also is suing DOC Executive Director Rick
Raemisch and Trinidad Correctional Facility Warden Ed Caley in their official capacities.

1

Unlike the other Defendants, Mr. Zunogama does not indicate in the caption of the Prisoner
Complaint that Defendant Apodaca is being sued in his personal capacity. However, Mr. Zunogama
makes clear that Defendant Apodaca is being sued in both his official and personal capacities on page two
of the Prisoner Complaint.

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Mr. Zunogama does not assert any facts that demonstrate either Rick Raemisch or Ed
Caley personally participated in the alleged use of excessive force.
Mr. Zunogama’s claims against Defendants in their official capacities are legally
frivolous. Official capacity suits “generally represent only another way of pleading an
action against an entity of which an officer is an agent.” Monell v. Department of Social
Services, 436 U.S. 658, 690 n.55 (1978). Mr. Zunogama alleges that each of the
Defendants is a DOC prison official. Therefore, his claims against Defendants in their
official capacities actually are claims against the DOC.
The DOC, which is an agency of the State of Colorado, see Colo. Rev. Stat.
§ 24-1-128.5, is protected by Eleventh Amendment immunity. 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), and congressional enactment of 42 U.S.C.
§ 1983 did not abrogate Eleventh Amendment immunity. See Quern v. Jordan, 440
U.S. 332, 340-345 (1979). Therefore, the official capacity claims will be dismissed as
legally frivolous. Because Defendants Raemisch and Caley are sued only in their
official capacities, they will be dismissed as parties to the action.
The Court will not address at this time the merits of Mr. Zunogama’s claims
against Defendants Vigil, Mateo, and Apodaca in their personal capacities. Instead, the
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action will be drawn to a presiding judge and, if applicable, to a magistrate judge. See
D.C.COLO.LCivR 8.1(c). Accordingly, it is
ORDERED that Plaintiff’s claims in the Prisoner Complaint against Defendants in
their official capacities are dismissed as legally frivolous pursuant to 28 U.S.C. §
1915A(b). It is
FURTHER ORDERED that Defendants Rick Raemisch and Ed Caley are
dismissed as parties to this action. It is
FURTHER ORDERED that this case shall be drawn to a presiding judge and, if
applicable, to a magistrate judge.
DATED at Denver, Colorado, this

22nd

day of

January

, 2015.

BY THE COURT:

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

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