Medina v. Denver Parole Office et al

Filing 20

ORDER to Dismiss in Part and to Draw in Part by Judge Lewis T. Babcock on 3/16/15. Defendant Denver Parole Office is dismissed. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03037-GPG
NICK RAUL MEDINA,
Plaintiff,
v.
DENVER PAROLE OFFICE,
P.O. JULIE DAVID, and
P.O. GENIE CANNAHAN,
Defendants.
ORDER TO DISMISS IN PART
AND TO DRAW IN PART
Plaintiff Nick Raul Medina is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Sterling Correctional Facility in Sterling,
Colorado. Plaintiff initiated this action by filing pro se a Prisoner Complaint pursuant to
42 U.S.C. § 1983 and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915. Subsequent to curing certain deficiencies in the initial filings,
Plaintiff was granted leave to proceed pursuant to § 1915.
The Court must construe the Complaint liberally because Plaintiff 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). However, the Court should not act as
an advocate for pro se litigants. See Hall, 935 F.2d at 1110.
Subsection (e)(2)(B) of 28 U.S.C. § 1915 requires a court to dismiss sua sponte
an action at any time if the action is frivolous, malicious, or seeks monetary relief
against a defendant who is immune from such relief. 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. Neitzke v. Williams, 490 U.S. 319,
324 (1989). Under 42 U.S.C. § 1983, a plaintiff must allege that the defendants have
violated his or her rights under the Constitution and laws of the United States while they
acted under color of state law. Adickes v. S. H. Kress & Co , 398 U.S. 144, 150 (1970).
The Court will dismiss this action in part as legally frivolous, for the reasons stated
below.
The operative Complaint in this action is the Complaint filed on February 6, 2015.
Plaintiff asserts three claims in this Complaint, (1) Abuse of Power by a Person in a
Position of Trust; (2) Slander; and (3) Harassments pursuant to 28 U.S.C. § 1983 and
28 U.S.C. § 1343. The events of these claims took place during two separate time
periods.
In Claim One, Plaintiff asserts that in 2005, when he was serving a two-year
parole sentence for escaping from a mental institution, and in 2013, when he again was
serving parole, Defendant Julie David harassed and mentally tortured him in violation of
his Eighth Amendment rights. Compl., ECF No.15 at 4. Plaintiff further asserts that
Defendant David was offended by Plaintiff’s relationship with a “veteran officer,”
harassed Plaintiff and his wife by making comments about their relationship and making
visits to their residence late at night, but then discontinued the harassment after
Plaintiff’s wife assisted Defendant David with the licensing of her motorcycle at the DMV
where she worked. Id. Plaintiff contends that Defendant David felt “exposed” by the
Plaintiff’s wife helping her, may have feared retaliation, and “backed off.” Id.
Then again in 2013, when Plaintiff was released to parole, Defendant David,
along with Defendant Genie Cannahan, were the parole officers who transported him
from the Denver Rehabilitation and Diagnostic Center. Id. Plaintiff contends that

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Defendant David shoved him into the vehicle and told Defendant Cannahan that Plaintiff
is a narcissistic punk with too much power and connections, and that he is a thug who
compromises “cops.” Id. Plaintiff further asserts that Defendant Cannahan then
intentionally isolated Plaintiff from his support system, by not allowing Plaintiff to attend
his brother’s funeral service, participate in Christmas celebrations, and to be at the
family business. Id. at 5. Defendant Cannahan further required Plaintiff to partially
disrobe on one occasion. Id. Finally Defendants Cannahan and David used their
position to terrify him and mentally torture him, resulting in Plaintiff “doing something to
jeopardize his parole.” Id.
Also, in Claim One, Plaintiff asserts that he has named Defendant Parole Office
as a party, because a previous parole officer for Plaintiff in 2001 successfully allowed
him to complete his parole with minimal problems, but the records of this parole were
not available at the parole office. Id.
In Claim Two, Plaintiff asserts that Defendant David slandered him in front of his
wife during his 2005 parole by telling his spouse he was narcissistic and she should not
have left the police department to be with him. Id. at 6. During the 2013 parole,
Defendant Cannahan slandered Plaintiff to his family members, but more specifically to
his girl friend, by stating that he is “no good” and to “get away from him.” Id. Plaintiff
also contends that the Parole Office and P.O. Supervisor Goldberg should have
investigated Defendant David and Cannahan’s reports, especially since he had no
problems with Mr. Goldberg when he was his parole officer in 2001. Id.
In Claim Three, Plaintiff asserts the same allegations that he asserts in Claims
One and Two to support his harassment claim. As relief, Plaintiff asks that Defendants
David and Cannahan be relieved of their jobs and that he be financially compensated.

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Other than the reference to the Eighth Amendment in Claim One, Plaintiff does
not identify what constitutional rights were violated. Plaintiff identifies his claims as
abuse of power by a person in position of trust, slander, and harassment. The Court will
construe Plaintiff’s claims as follows.
First, Defendant Denver Parole Office is immune from suit under 42 U.S.C.
§ 1983 action, whether it is a county or state agency. The Denver Parole Office is not a

person for § 1983 purposes and if an arm of the state it is protected from suit under the
Eleventh Amendment. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70-71
(1989).
If the parole office is considered an agency of Denver City and County it is not a
properly named defendant, because the parole office is not a separate entity from the
city and county, and, therefore, is not a person under 42 U.S.C. § 1983. See Stump v.
Gates, 777 F. Supp. 808, 814-16 (D. Colo. 1991), aff'd, 986 F.2d 1429 (10th Cir. 1993).
Any claims asserted against the Denver Parole Office must be considered as asserted
against the Denver City and County.
In addition, municipalities and municipal entities are not liable under 42 U.S.C.
§ 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 (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).
Plaintiff cannot state a claim for relief against Denver City and County under
§ 1983 merely by pointing to isolated incidents. See Monell, 436 U.S. at 694.
Plaintiff’s claim against Defendant Denver Parole Office, therefore, lacks merit

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and will be dismissed as legally frivolous.
Second, a claim of slander does not state a cognizable claim under 42 U.S.C.
§ 1983, because damage to one’s reputation is not enough to implicate due process
protections. See Paul v. Davis, 424 U.S. 693, 701 (1976). Plaintiff’s slander claims
asserted against Defendants David and Cannahan, including the remarks made to him,
and to his wife, family, and girlfriend lack merit and will be dismissed as legally frivolous.
Finally, Plaintiff’s harassment claim is a restatement of the allegations he asserts
in Claims One, which include his slander claims, and assertions that he was denied
associations, subjected to late night visitations, and required on one occasion to
partially disrobe. Having determined the slander claim and the claims asserted against
the Denver Parole Division are legally frivolous, the only claims that remain involve
visitation, disrobing, denial of association, and unnecessary force, which are properly
addressed as a violation of Plaintiff’s Fourth Amendment rights. These remaining
claims will be drawn to a presiding judge and to a magistrate judge.
The Court, however, notes that, even though Plaintiff does not list Matt Goldberg
in the caption of the Complaint, he does state Mr. Goldberg, being Defendants David
and Cannahan’s supervisor, should have investigated their actions. Plaintiff’s claims
against Mr. Goldberg lack merit for the following reasons.
A person may not be held liable for the unconstitutional conduct of his or her
subordinates on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009). Furthermore,
when a plaintiff sues an official under Bivens or § 1983 for
conduct “arising from his or her superintendent
responsibilities,” the plaintiff must plausibly plead and
eventually prove not only that the official’s subordinates
violated the Constitution, but that the official by virtue of his
own conduct and state of mind did so as well.
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Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at
677). Therefore, in order to succeed in a § 1983 suit, (the proper jurisdiction to address
constitutional violation claims), against a government official for conduct that arises out
of his or her supervisory responsibilities, a plaintiff must allege and demonstrate that:
“(1) the defendant promulgated, created, implemented or possessed responsibility for
the continued operation of a policy that (2) caused the complained of constitutional
harm, and (3) acted with the state of mind required to establish the alleged
constitutional deprivation.” Id. at 1199. Nothing Plaintiff asserts against Mr. Goldberg
states that he participated in or directed the denial of associations, late night visitations,
or the partial disrobing. Accordingly, it is
ORDERED that the slander claim and the claims against Defendant Parole Office
are dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It is
FURTHER ORDERED that the remaining claims, construed as properly filed
pursuant to the Fourth Amendment, are ordered drawn to a presiding judge and when
applicable to a magistrate judge.
DATED at Denver, Colorado, this

16th

day of

March

BY THE COURT:

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

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, 2015.