Gilmore v. Sicotte et al

Filing 11

REVISED ORDER re: 5 Order to dismiss in part and to draw case, by Judge Lewis T. Babcock on 4/27/2015. (tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00741-GPG
WILLIAM GILMORE,
Plaintiff,
v.
TRUDY SICOTTE, PA,
DAVID TESSIER, HCA, and
FREMONT CORRECTIONAL FACILITY
Defendants.

REVISED ORDER TO DISMISS IN PART AND TO DRAW CASE

Plaintiff William Gilmore is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Fremont Correctional Facility in Cañon
City, Colorado. Plaintiff, acting pro se, initiated this action by filing 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. Plaintiff has been granted leave to proceed
pursuant to § 1915.
Plaintiff asserts that his constitutional rights have been violated because
Defendants Trudy Sicotte and David Tessier failed to provide adequate medical
treatment for Plaintiff’s broken ankle. Plaintiff seeks money damages. These claims
asserted against Defendants Trudy Sicotte and David Tessier will be drawn to a
presiding judge and when applicable to a magistrate judge.
Defendant Fremont Correctional Facility is immune from suit. The State of
Colorado and its agencies are protected by Eleventh Amendment immunity. See Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989); Meade v. Grubbs, 841 F.2d
1512, 1525-26 (10th Cir. 1988). “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), overruled on other grounds by Ellis v.
University of Kan. Medical Center, 163 F.3d 1186, 1194-97 (10th Cir. 1998). 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). Accordingly, it is
ORDERED THAT THE CLERK OF THE COURT IS DIRECTED TO ENTER
THIS REVISED ORDER AS FILED ON APRIL 14, 2015, AND VACATE THE ORDER
ENTERED IN ECF NO. 5. It is
FURTHER ORDERED that Defendant Fremont Correctional Facility will be
dismissed from the action. It is
FURTHER ORDERED that the claims asserted against Defendants Trudy Sicotte
and David Tessier shall be drawn to a presiding judge and when applicable to a
magistrate judge.
DATED at Denver, Colorado, this

27th

day of

April

, 2015.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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