Harding v. Gessler
Filing
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ORDER dismissing Defendant State of Colorado, and drawing this case to a presiding judge, by Judge Lewis T. Babcock on 3/31/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03122-GPG
LINDSAY HARDING,
Plaintiff,
v.
COLORADO, and
SCOTT GESSLER, In his Official Capacity,
Defendants.
ORDER OF DISMISSAL
Plaintiff Lindsay Harding is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Buena Vista Correctional Facility in
Buena Vista, Colorado. He initiated this action by filing pro se a Prisoner Complaint
alleging a deprivation of his constitutional rights pursuant to 42 U.S.C. § 1983 and 28
U.S.C. § 1391(b)(2). Plaintiff also requested leave to proceed pursuant to 28 U.S.C.
§1915, which was granted on November 20, 2014. Plaintiff then filed an Amended
Complaint on January 8, 2015.
In Claim One, Plaintiff asserts that he is a qualified voter because on June 28,
2013, the Colorado Court of Appeals reversed his felony conviction and sentence.
Plaintiff further alleges that Defendant Gessler violated his Fourteenth and Fifteenth
Amendment rights when he failed to respond to Plaintiff’s request for voter registration
forms, after the reversal of his conviction, and as a result Plaintiff was precluded from
voting in violation of 52 U.S.C. § 10101(a)(1). Plaintiff further asserts that his equal
protection rights were violated because Defendant Gessler sent registration forms to
pretrial detainees and to persons confined in the state mental institution, but has
precluded Plaintiff. In Claim Two, Plaintiff asserts that Colo. Rev. Stat. § 1-2-103(4) and
(5) violates the Fourteenth Amendment and is preempted by 52 U.S.C. § 10101.
Magistrate Judge Gordon P. Gallagher reviewed the Amended Complaint, found
that pursuant to the Colorado Department of Corrections website Plaintiff is serving six
sentences, three of which are twenty-four years to life, and directed Plaintiff to respond
and show cause why his conviction and sentences are not for felony offenses. Plaintiff
was told that if he failed to comply and show cause within the time allowed the Court
would proceed to review the merits of his claims based on the finding that the conviction
and sentences are for felony offenses. Plaintiff failed to respond to the Order to Show
Cause within the time allowed and the Court dismissed the action because Plaintiff had
been convicted of and his sentences are for felony offenses.
Plaintiff then filed a Response and a Motion to Stay that included a copy of the
Colorado Court of Appeals order, State of Colo. v. Harding, No. 10CA1584 (Colo. App.
June 27, 2013), that reversed his conviction remanded the case to the trial court for a
new trial. The Court construed the Response and Motion to Stay as a Fed. R. Civ. P.
59(e) Motion to Reconsider and granted the Motion. The Court now will dismiss the
action in part for the reasons stated below and order the action drawn in part to a
presiding judge and when applicable to a magistrate judge.
The State of Colorado, is an improper party to this action. Any claim against the
State of Colorado is barred by the Eleventh Amendment. 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
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federal courts for states and their agencies.” Ramirez v. Oklahoma Dep’t of Mental
Health, 41 F.3d 584, 588 (10th Cir. 1994).
The Eleventh Amendment, however, does not bar a federal court action so long
as the plaintiff seeks in substance only prospective relief and not retrospective relief for
alleged violations of federal law, but a claim for prospective relief is asserted against
individual state officers. Verizon Maryland v. Public Service Commission of Maryland,
535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261,
296 (1997)); Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007). The State of Colorado,
therefore, will be dismissed as an improper party to this action. Accordingly, it is
ORDERED that Defendant State of Colorado is dismissed as an improper party
to this action. It is
FURTHER ORDERED that the claims asserted against Defendant Scott Gessler
are ordered drawn to a presiding judge and when applicable to a magistrate judge.
DATED at Denver, Colorado, this 31st
day of
March
, 2015.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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