George v. Colorado Department of Corrections et al

Filing 14

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 5/18/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00436-LTB
RICHARD D. GEORGE,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS; and
COLORADO SPRINGS PAROLE OFFICERS,
Defendants.

ORDER OF DISMISSAL

Plaintiff Richard D. George is a prisoner in the custody of the Colorado Department of
Corrections and currently is incarcerated at the El Paso County Criminal Justice Center in Colorado
Springs, Colorado. Plaintiff, acting pro se, initiated this action on March 2, 2015 by filing a Complaint
alleging that his constitutional rights were violated. On March 26, 2015, Plaintiff was granted leave
to proceed pursuant to 42 U.S.C. § 1915 (ECF No. 6).
A. Mandatory Screening Provision and Standard of Review
Title 28 of the United States Code, section 1915, establishes the criteria for allowing an action
to proceed in forma pauperis (IFP), i.e., without prepayment of costs. Section 1915(e) (as amended)
requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis
and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B). Plaintiff has been granted leave to proceed IFP in this action (ECF No.
6). Thus, his Complaint must be reviewed under the authority set forth above.

A viable complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional standard set
forth in Conley v. Gibson, 355 U.S. 41, 45–46 (1957)). The question to be resolved is: whether,
taking the factual allegations of the complaint, which are not contradicted by the exhibits and matters
of which judicial notice may be had, and taking all reasonable inferences to be drawn from those
uncontradicted factual allegations of the complaint, are the "factual allegations ... enough to raise a
right to relief above the speculative level, ... on the assumption that all the allegations in the complaint
are true even if doubtful in fact[.]" Bell Atlantic Corp., 550 U.S. at 555. When reviewing a complaint
for failure to state a claim, the Court may also consider documents attached to the complaint as
exhibits. Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (internal citation omitted).
Moreover, 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). See also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (holding that
a court may dismiss a claim as factually frivolous if the facts alleged are clearly baseless, a category
encompassing allegations that are fanciful, fantastic, and delusional).
The Court must construe Mr. George’s pleadings liberally because he is a pro se litigant. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
If a complaint reasonably can be read “to state a valid claim on which the plaintiff could prevail, [a
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, a court should not act as a pro se litigant’s advocate.
See id. It is not the Court's duty to search voluminous pages of gibberish for statements which may

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support a claim or a remedy. See Gross v. Burggraf Construction Co., 53 F.3d 1531, 1546 (10th Cir.
1995). A pro se litigant must comply with the fundamental requirements of the Federal Rules of Civil
Procedure and a plaintiff's pro se status does not entitle him to application of different rules. Montoya
v. Chao, 296 F.3d 952, 957 (10th Cir. 2002). Sua sponte dismissal is proper when it is patently obvious
that plaintiff could not prevail on the facts alleged and it would be futile to allow the plaintiff to
amend. Andrews v. Heaton, 483 F.3d 1070, 1074 (10th Cir. 2007); Curley v. Perry, 246 F.3d 1278,
1281–82 (10th Cir. 2001) (internal quotations omitted).
For the reasons stated below, the Complaint and this action will be dismissed.
B. Plaintiff’s Allegations and Claims
In his Complaint, Mr. George alleges that when he was released on parole in 2012, his parole
officer, Officer Cook, told him to use a Walmart store to bathe in and recharge his ankle monitor. He
claims that she did not provide him with motel or transportation vouchers and that he was forced to
violate his parole as a consequence. He asserts that he has been charged with “escape” for leaving his
“Walmart” address. He further states that Officer Cook testified at his preliminary hearing in October
of 2014 that he was a sexually violent predator (SVP) but that he never has been convicted of a sex
crime. In his first claim, he asserts that Defendants are liable for forcing him to violate his parole by
failing to provide him with motel vouchers and directing him to live at Walmart. In his second claim,
he asserts that Defendants “defamed” him when Parole Officer Cook testified at a preliminary hearing
in October of 2014 that he was a violent sex offender. In his third claim, he states that Defendants
failed to provide him with necessities for successful reintegration into society.
C. Younger Abstention
In Younger v. Harris, 401 U.S. 37, 44 (1971), the Supreme Court held that federal courts must

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refrain from interfering in ongoing state court proceedings in the absence of extraordinary
circumstances. See Morrow v. Winslow, 94 F.3d 1386, 1393 (10th Cir. 1996). The Younger abstention
applies to pending criminal proceedings as well as parole revocation proceedings affecting state court
orders. See, e.g., Maney v. Winges-Yanez, Civil No. 6:13–CV–00981, 2014 WL 3778309 (D. Or. July
30, 2014); Rushion v. Fuller, Civil No. 13–CV–4277, 2013 WL 5406602, at * 4 (E.D.N.Y. Sept. 25,
2013).
Abstention under Younger is appropriate when three conditions are met.
First, there must be ongoing state criminal, civil, or administrative proceedings.
Second, the state court must offer an adequate forum to hear the federal plaintiff’s
claims from the federal lawsuit. Third, the state proceeding must involve important
state interests, matters which traditionally look to state law for their resolution or
implicate separately articulated state policies.
Taylor v. Jaquez, 126 F.3d 1294, 1297 (10th Cir. 1997). Furthermore, “Younger abstention is
non-discretionary; it must be invoked [by the district court] once the three conditions are met, absent
extraordinary circumstances.” Amanatullah v. State Bd. of Medical Examiners, 187 F.3d 1160, 1163
(10th Cir. 1999).
All three conditions are met in this action. First, state court proceedings are ongoing.
Plaintiff’s parole revocation proceeding has been continued until July 22, 2015 pending resolution of
his pending escape charge. Second, a parole revocation proceeding is an adequate forum in which to
raise his claims. Finally, state court criminal and parole revocation proceedings are traditional state
law matters that implicate important state interests. In this regard, the Supreme Court "has recognized
that the States' interest in administering their criminal justice systems free from federal interference
is one of the most powerful of the considerations that should influence a court considering equitable
types of relief." Kelly v. Robinson, 479 U.S. 36, 49 (1986) (citing Younger, 401 U.S. at 44-45).

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Additionally, the Supreme Court repeatedly has affirmed that a state's operation of its court system is
an important state interest.

See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13 (1987).

Consequently, this Court should abstain from reviewing Plaintiff’s claims.
Moreover, Plaintiff’s claims in the instant action do not state a claim upon which relief may
be granted.
D. Limitations Period
Mr. George’s Complaint concerns actions and alleged inactions by certain parole officers, most
of which occurred in June of 2012. These claims are time-barred. In this regard, the limitations period
for civil actions brought under 42 U.S.C. § 1983 is determined by state law. See Wilson v. Garcia, 471
U.S. 261, 272–76 (1985) (42 U.S.C. § 1983) (holding that the forum state's personal injury statute of
limitations should be applied to all § 1983 claims). In Colorado, the residual statute of limitations for
all actions, including personal injury actions, provides a two-year limitations period.

C.R.S. §

13-80-102(1)(i). See also Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (recognizing
two-year statute of limitations for § 1983 actions in Colorado). The date when a civil rights action
accrues (begins to run) is a matter of federal law. Albright v. Oliver, 510 U.S. 266, 280 n. 6 (1994)
(J. Ginsburg, concurring). A claim accrues when the plaintiff becomes aware, or should have become
aware, of both the fact of injury and its causal connection to the Defendant. See Delaware State
College v. Ricks, 449 U.S. 250, 258 (1980) (it is the wrongful act that triggers the start of the
limitations period); Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 557 (10th Cir. 1999)
(citations omitted).
Mr. George’s claims concerning the conditions of his release on parole occurred in June of
2012. Because Plaintiff initiated the instant action on March 2, 2015, more than two years after such

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claims accrued, they are untimely. The court may dismiss a claim as time-barred where the running
of the applicable statute of limitations is clear from the face of the complaint and no further factual
record is required. See Fogle, 435 F.3d at 1258; Fratus v. DeLand, 49 F.3d 673, 674-75 (10th Cir.
1995).
E. Immunity
Moreover, Plaintiff cannot assert liability for damages against the named Defendants in this
action. In this regard, Plaintiff names the Colorado Department of Corrections (CDOC) as a
Defendant in this action. The CDOC is not a separate entity, it is an arm of the state. The Eleventh
Amendment bars suits against the states absent an express and unambiguous waiver or abrogation by
Congress. See, e.g., Edelman v. Jordan, 415 U.S. 651, 662–63 (1974). State sovereign immunity is
more than immunity from liability—it actually deprives federal courts of subject-matter jurisdiction.
Id. at 678. The Eleventh Amendment does permit suits for prospective injunctive relief against state
officials for violations of federal law, but not for retrospective relief such as money damages. Frew
ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). Sovereign immunity is not confined to suits in
which the State is named as defendant, Edelman, 415 U.S. at 663; state agencies are entitled to
Eleventh Amendment immunity if they are “arms of the state,” Ambus v. Granite Bd. of Educ., 995
F.2d 992, 994 (10th Cir. 1993) (en banc) (internal quotation marks and citation omitted). The CDOC
is such an agency. See Griess v. Colorado, 841 F.2d 1042, 1044–45 (10th Cir. 1988).
Here, Plaintiff brought suit against the CDOC seeking only money damages. Congress did not
abrogate Eleventh Amendment immunity through § 1983, see Quern v. Jordan, 440 U.S. 332, 345
(1979), nor has the CDOC expressly waived its sovereign immunity. Griess, 841 F.2d at 1044-45.
Accordingly, Mr. George cannot obtain a judgment for damages against the CDOC.

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The remaining Defendant is labeled as “Colorado Springs Parole Officers.” A defendant is
entitled to absolute immunity “[w]hen performing functions that are ‘quasi-judicial’ in nature.” Russ
v. Uppah, 972 F.2d 300, 303 (10th Cir. 1992). Absolute immunity has been granted to probation and
parole officers with respect to some, but not all, activities. See Snell v. Tunnell, 920 F.2d 673, 692 n.
18 (10th Cir. 1990). For example, absolute immunity has been granted to officers who allegedly made
false statements in a pretrial bond report and a presentence report as “such functions of the probation
officer are integrally related to the judicial function.” Id. In the instant case, the only actions
complained within the limitations period concern Officer Cook’s alleged testimony at a preliminary
hearing. A trial witness has absolute immunity with respect to any claim based on the witness'
testimony. Briscoe v. LaHue, 460 U.S. 325, 330 (1983). Accordingly, it is
ORDERED that the Complaint and this action are DISMISSED pursuant to 28 U.S.C. §
1915(e)(2). It is
FURTHER ORDERED that leave to proceed in forma pauperis is denied for the purpose of
appeal. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Quinn files
a notice of appeal he must also 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.
DATED May 18, 2015, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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