Peterson v. Timme et al

Filing 7

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. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00216-GPG
BRUCE EDWARD PETERSON,
Plaintiff,
v.
RAE TIMME, F.C.F. Warden,
JOHN SUTHERS, Attorney General,
CITY AND COUNTY OF DENVER CO., et al.,
DENVER COUNTY POLICE DEPARTMENT, et al.,
OFFICER RUDY MANZANARES,
TRAVIS WILLIAMS, Detective,
JOSEPH RIVERA, Investigator, and
U.S. DISTRICT COURT JUDGE R. BROOKE JACKSON,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Bruce Edward Peterson, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Peterson 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.
The Court must construe the Prisoner Complaint liberally because Mr. Peterson
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. Peterson’s claims in
the Prisoner Complaint because he is a prisoner and he is seeking redress from officers
or employees of a governmental entity. Pursuant to § 1915A(b), the Court is required to
dismiss the Prisoner Complaint, or any portion of the Prisoner Complaint, that is
frivolous or that seeks monetary relief from 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.
See Neitzke v. Williams, 490 U.S. 319, 324 (1989). For the reasons stated below, the
Court will dismiss the Prisoner Complaint pursuant to § 1915A(b).
Mr. Peterson’s claims in this action arise out of his efforts in state and federal
court to challenge the validity of his criminal conviction and sentence.
Peterson was convicted in Colorado state court of
enticement of a child, attempted sexual assault, and
indecent exposure. Peterson filed both a postconviction
motion under Colo. R. Crim. P. 35(c) and a direct appeal.
The Colorado Court of Appeals denied the Rule 35(c) motion
and affirmed the conviction. Peterson petitioned the
Colorado Supreme Court for writ of certiorari, which was
denied on November 15, 2010.
In November 2011, Peterson filed a § 2254 habeas
petition in the United States District Court for the District of
Colorado. Peterson’s petition alleged: (1) judicial
misconduct by the trial court; (2) an unreasonable verdict
unsupported by the evidence; and (3) ineffective assistance
of counsel. On April 5, 2012, the district court dismissed
Peterson’s first two claims as procedurally barred after
determining that Peterson failed to exhaust state remedies.
The district court also ordered further briefing on the
ineffective assistance of counsel claim.
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In October 2012, the district court denied Peterson’s
ineffective assistance of counsel claim. Holding that
Peterson’s claims were conclusory and that they failed to
show prejudice, the court issued a final judgment dismissing
Peterson’s habeas petition.
Peterson v. Timme, 509 F. App’x 830, 831 (10th Cir.), cert. denied, 134 S. Ct. 258
(2013). On appeal from the dismissal of Mr. Peterson’s § 2254 habeas petition, the
United States Court of Appeals for the Tenth Circuit denied Mr. Peterson a certificate of
appealability and dismissed the appeal. See id.
Mr. Peterson asserts three claims for relief in the Prisoner Complaint. He first
claims he was denied due process in connection with his § 2254 habeas corpus petition
in District of Colorado case number 11-cv-03003-RBJ because the Honorable R.
Brooke Jackson erred in determining two of his claims were unexhausted and
procedurally barred. Mr. Peterson asserts in his second claim that his right to due
process was violated because he was denied relief in the state court postconviction
proceedings. In his third claim Mr. Peterson challenges the final judgment entered in
case number 11-cv-03003-RBJ.
Mr. Peterson lists eight Defendants in the caption of the Prisoner Complaint but
he makes specific allegations of personal participation against only Judge Jackson.
Allegations of “personal participation in the specific constitutional violation complained of
[are] essential.” See Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011). Therefore,
because Mr. Peterson fails to allege facts that demonstrate personal participation by
any Defendant other than Judge Jackson, the claims against the Defendants other than
Judge Jackson are legally frivolous and must be dismissed.
Mr. Peterson’s claims against Judge Jackson also are legally frivolous and must
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be dismissed. For one thing, Mr. Peterson cannot state an arguable § 1983 claim
against a judge merely because the judge ruled against him in prior litigation. Similarly,
to the extent the Prisoner Complaint could be construed liberally to include allegations
of personal participation against Defendants Rae Timme and John Suthers, the
Respondents in case number 11-cv-03003-RBJ, Mr. Peterson cannot state an arguable
§ 1983 claim against those individuals merely because they prevailed in the prior
litigation. Whatever arguments Mr. Peterson believes demonstrate his claims in case
number 11-cv-03003-RBJ were dismissed in error could and should have been raised
on appeal. Mr. Peterson availed himself of the opportunity to pursue an appeal and, as
described above, the Tenth Circuit denied a certificate of appealability and dismissed
the appeal.
Furthermore, even assuming Mr. Peterson could state an arguable claim against
Judge Jackson based on his rulings in prior litigation, Judge Jackson would be entitled
to absolute judicial immunity. Judges are absolutely immune from liability in civil rights
suits for money damages for actions taken in their judicial capacity unless the judge was
acting in the clear absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12
(1991); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); Hunt v. Bennett, 17 F.3d
1263, 1266-67 (10th Cir. 1994). Mr. Peterson does not allege any facts that
demonstrate Judge Jackson acted outside the scope of his absolute immunity with
respect to his rulings in case number 11-cv-03003-RBJ. Therefore, the claims against
Judge Jackson are barred by absolute judicial immunity and also must be dismissed for
that reason. To the extent Mr. Peterson is seeking relief other than damages with
respect to his claims against Judge Jackson, including a hearing in case number 11-cv4

03003-RBJ, such relief is not appropriate in this action.
For these reasons, the Prisoner Complaint will be dismissed. 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 (ECF No. 1) and the action are
dismissed in their entirety pursuant to 28 U.S.C. § 1915A(b). It is
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.
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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