Marner v. State of Colorado

Filing 22

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/13/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-0991-LTB
ZACHARY MARNER,
Plaintiff,
v.
ANNA LOKSHINA, Probation Officer, ET AL.,
Defendants.

ORDER OF DISMISSAL

Plaintiff Zachary Marner resides in Wheat Ridge, Colorado. On May 11, 2015, he
initiated this action by filing, pro se, a one-hundred plus page long civil rights complaint against
various state and county entities and individuals. On June 5 and June 9, 2015, he filed amended
complaints (ECF Nos. 8 & 9) against various entities and individuals. The Court granted leave
to proceed pursuant to 28 U.S.C. § 1915 on June 12, 2015 (ECF No. 12). On June 15, 2015, this
Court issued a six-page Order directing Plaintiff to file an Amended Complaint (ECF No. 14).
That Order provided specific guidance on the deficiencies in the Amended Complaint. On July
15, 2015, Mr. Marner filed another Amended Complaint (ECF No. 17) against twenty-two
various governmental employees concerning allegations that encompass the time period from
2007 through 2015. Mr. Marner further has added his two minor children as Plaintiffs and seeks
monetary damages. Plaintiff asserts seven claims in his Complaint: Claim One-First
Amendment violations; Claim Two-Fourth Amendment violations; Claim Three-Sixth
Amendment violations concerning his criminal conviction; Claim Four-Fourteenth Amendment
violations; Claim Five-Violations of the Fair Credit Reporting Act; Claim Six-Defamation of
Character; and Claim Seven-Conspiracy to deprive Plaintiff of his constitutional rights.

A. Applicable Legal Principles
Pertinent to the case at bar is the authority granted to federal courts for sua sponte
screening and dismissal of certain claims. In this regard, 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).
In addition, Congress enacted a new statutory provision at 28 U.S.C. § 1915A, entitled
“Screening,” which requires the court to review complaints filed by prisoners seeking redress
from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. §
1915A(a). If the complaint is “frivolous, malicious, or fails to state a claim upon which relief
can be granted,” or “seeks monetary relief from a defendant who is immune from such relief,”
the court must dismiss the complaint. 28 U.S.C. § 1915A(b).
Plaintiff has been granted leave to proceed IFP in this action (ECF No. 12). Moreover,
his Complaint asserts claims against officers and employees of governmental agencies. Thus, his
Complaint must be reviewed under the authority set forth above.
In reviewing complaints under these statutory provisions, 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
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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.
The Tenth Circuit Court of Appeals has held “that plausibility refers to the scope of the
allegations in a complaint: if they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs have not nudged their claims across the line from
conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)
(internal citations and quotations omitted). The Circuit court has further noted that the nature
and specificity of the allegations required to state a plausible claim will vary based on context.
Id. The Court thus concluded that the applicable standard is “a wide middle ground between
heightened fact pleading, which is expressly rejected, and allowing complaints that are no more
than labels and conclusions or a formulaic recitation of the elements of a cause of action, which
the Court stated will not do.” Id.
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 Conkleton v. Raemisch, 603 F. App’x 713 (10th
Cir. 2015); Ross v. Romero, 191 F. App’x 682 (10th Cir. 2006) (affirming district court’s sua
sponte dismissal of civil rights complaint under 28 U.S.C. § 1915(b)).
The Court must construe the pleadings liberally because Plaintiff 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
3

act as a pro se litigant’s advocate. See id. Sua sponte dismissal is proper when it is patently
obvious that plaintiff could not prevail on the facts alleged and allowing him an opportunity to
amend his complaint would be futile. Curley v. Perry, 246 F.3d 1278, 1281–82 (10th Cir. 2001)
(internal quotations omitted).
For the reasons stated below, the Complaint and the action will be dismissed pursuant to
the screening authority set forth above. The pertinent grounds which will result in the dismissal
are addressed below.
B. Liability under 42 U.S.C. § 1983
With the exception of his Fifth Claim, Plaintiff seeks to assert liability against
Defendants pursuant to 42 U.S.C. § 1983. To state a claim under 42 U.S.C. § 1983, a plaintiff
must meet two threshold requirements. He must allege: 1) that the alleged misconduct was
committed by a person acting under color of state law; and 2) that as a result, he was deprived of
rights, privileges, or immunities secured by the Constitution or laws of the United States. West
v. Atkins, 487 U.S. 42 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on
other grounds, Daniels v. Williams, 474 U.S. 327, 330–331 (1986). In addressing a claim
brought under § 1983, analysis begins by identifying the specific constitutional right allegedly
infringed. Graham v. Connor, 490 U.S. 386, 393–394 (1989) (internal quotations and citations
omitted). The validity of the claim then must be judged by reference to the specific
constitutional standard which governs that right. Id. The elements necessary to establish a §
1983 vary with the constitutional provision at issue. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
(internal citations omitted). But common to all § 1983 claims is the requirement that liability be
predicated on a violation traceable to a defendant-official's “own individual actions.” Id. See
also Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (noting that "personal
participation is an essential allegation in a § 1983 claim"); Brush v. Burgess, 177 F. App’x 805,
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807 (10th Cir. 2006) (concluding that a sheriff's supervisory responsibility for a jail is insufficient
to establish deliberate indifference absent personal participation).
As relevant here, government officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior. Board of County Com'rs of
Bryan County, Okl. v. Brown, 520 U.S. 397, 403 (1997). Personal involvement, however, does
not mean direct participation is necessary. A government official can be held liable in a § 1983
suit for a constitutional violation under a theory of supervisory liability but only if the plaintiff
shows: 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. Dodds v.
Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010).
Here, Plaintiff has included among the Defendants Governor John Hickenlooper, Police
Chiefs Terry Jones, Daniel Oates and Robert White, Mayor Michael Hancock, Penny May, the
Director of Human Services, and Attorney General Cynthia Coffman. He fails, however, to
allege any personal participation by any of these individuals. Nor does he provide any bases
upon which to assert supervisory liability against any of these individuals. Accordingly, his
claims against them will be dismissed.
Moreover, even if a viable constitutional claim exists, a number of legal doctrines may
preclude recovery for those violations, including statutes of limitations, immunity, preclusion,
etc. These doctrines are discussed below.
C. Statute of Limitations
Plaintiff initiated this action on May 11, 2015. The applicable statute of limitations for a
§ 1983 claim in Colorado is two years. See Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir.
1993). Cf. Nicholas v. Boyd, 317 F. App'x 773, 777 (10th Cir. 2009) (holding that, in Colorado,
5

the applicable statute of limitations for § 1983 actions, even those asserted against enforcement
officers, is the two-year limitation period of § 13–80–102(1)(g)) (internal citations omitted). The
statute of limitations begins to run when a claim accrues. Under federal law, a § 1983 claim
accrues “when the plaintiff knows or has reason to know of the injury which is the basis of his
action.” Kripp v. Luton, 466 F.3d 1171, 1175 (10th Cir. 2006) (internal quotation marks omitted).
Although the statute of limitations is an affirmative defense, see Fed. R. Civ. P. 8(c)(1),
the court may dismiss a claim sua sponte on the basis of an affirmative defense if the defense is
“obvious from the face of the complaint” and “[n]o further factual record [is] required to be
developed in order for the court to assess the [plaintiff’s] chances of success.” Yellen v. Cooper,
828 F.2d 1471, 1476 (10th Cir. 1987); see also Fratus v. DeLand, 49 F.3d 673, 676 (10th Cir.
1995) (stating that dismissal under § 1915 on the basis of an affirmative defense is permitted
“when the claim’s factual backdrop clearly beckons the defense”).
In order to recover under 42 U.S.C. § 1983, the factual bases for Plaintiff’s claims must
have occurred on or after May 11, 2013. Although Plaintiff was advised that he could recover
for only those claims that occurred on or after May 11, 2013, he continued to raise such claims in
his Amended Complaint. He cites no authority to show that any of these claims are subject to
any tolling provisions. Accordingly, any claims that occurred prior to May 11, 2013 will be
dismissed.
E. Immunity
Section 1983 provides a cause of action against state actors who violate an individual's
rights under federal law. 42 U.S.C. § 1983. Notwithstanding, § 1983 was not meant “to abolish
wholesale all common-law immunities. Pierson v. Ray, 386 U.S. 547, 554 (1967). Instead, the
Act is to be read “in harmony with general principles of tort immunities and defenses rather than
in derogation of them.” Imbler v. Pachtman, 424 U.S. 409, 418. Thus, for some “special
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functions,” Butz v. Economou, 438 U.S. 478, 508 (1978), it is “ ‘better to leave unredressed the
wrongs done by dishonest officers than to subject those who try to do their duty to the constant
dread of retaliation.’ ” Imbler, 424 U.S. at 428 (quotation omitted).
The common law protections afford either absolute or qualified immunity to individuals
sued under § 1983. Filarky v. Delia, 132 S.Ct. 1657 (2012). Absolute immunity from suit
prevents damages recoveries from judges, prosecutors, and other persons acting under color of
law who perform official functions integral to the judicial, executive or legislative process. See,
e.g., Stump v. Sparkman, 435 U.S. 349 (1978) (judges); Imbler v. Pachtman, 424 U.S. 409
(1976) (prosecutor); Briscoe v. LaHue, 460 U.S. 325 (1983) (police officer witness); Butz v.
Economou, 438 U.S. 478 (1978) (federal agency hearing examiners and officials responsible for
initiating and prosecuting enforcement actions); Wilhelm v. Continental Title Co., 720 F.2d
1173, 1177–78 (10th Cir. 1983) (1984) (director of civil rights agency); Johnston v. Herschler,
669 F.2d 617, 620 (10th Cir. 1982) (governor); Tripati v. U.S.I.N.S., 784 F.2d 345, 348 (10th Cir.
1986) (probation officers for activities that are intimately associated with the judicial phase of
the criminal process such as preparation of a pretrial sentence report); Valdez v. City & Cnty. of
Denver, 878 F.2d 1285, 1286 (10th Cir. 1989) (officials charged with executing facially valid
court orders).
Moreover, government officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.
See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Plaintiff’s Amended Complaint contains allegations against, inter alia, probation officers
Anna Lokshina, Kim Carazza, David Gill, and Fran Jamison. The State probation officers are
cloaked with absolute judicial immunity when performing judicially related functions. United
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States v. Davis, 151 F.3d 1304 (10th Cir. 1998). A probation officer serves as an investigative
and supervisory arm of the court and is responsible to serve as liaison between the court, which
has supervisory power over the defendant's term of supervised release, and the probationer, who
must comply with the conditions of his supervised release or run the risk of revocation. Id. at
1307. Further, the probation officers' recommendations are just that, i.e., recommendations. It
remains the duty of the sentencing court to impose punishment and determine if and when
revocation of a probationary sentence is appropriate and to impose an appropriate sentence after
revocation.
Plaintiffs claims against the probation officers concern actions that are integrally related
to their judicial function in supervising probationers. As such, they are entitled to absolute
immunity in this action. Accord Snell v. Tunnell, 920 F.2d 673, 692 (10th Cir. 1990) (absolute
immunity 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).
The same is true for Judge Robert Hyatt and Hearing Officer Rebecca Hoffman as the
acts complained of were taken within their duties as judicial officers. Accordingly, these
Defendants will be dismissed.
D. Claims That Occurred on or after May 11, 2013
1.

Claim One
In Claim One, Plaintiff asserts alleged violations of his rights as provided by the First

Amendment of the Constitution. The only facts alleged by Plaintiff that occurred on or after
May 11, 2013 assert that an Aurora police officer threatened him that if he did not shut up, the
officer would put him under arrest (ECF No. 17, p. 17, ¶ 6).
Mere verbal threats or harassment do not rise to the level of a constitutional violation
8

unless they create “terror of instant and unexpected death.” Northington v. Jackson, 973 F.2d
1518, 1524 (10th Cir. 1992). Here, the officers' comments, although inappropriate, do not
suggest a show of deadly force, thus failing to create “terror of instant and unexpected death.”
As such, they fail to allege a constitutional violation and this claim will be dismissed. Accord
French v. Colorado, 357 F. App’x 200 (10th Cir. 2009); Crownhart v. Sullivan, 347 F. App’x
412, 413 (10th Cir. 2009); Alvarez v. Gonzales, 155 F. App’x 393, 396 (10th Cir. 2005); Collins v.
Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (holding, in case where sheriff laughed at inmate and
threatened to hang him after inmate sought to mail legal correspondence, that “[v]erbal
harassment or abuse of the sort alleged in this case is not sufficient to state a constitutional
deprivation under 42 U.S.C. § 1983”). Accordingly, this claim will be dismissed.
2.

Claim Two
In his second, claim, Plaintiff asserts violations of the Fourth Amendment concerning a

search of a vehicle where he was a passenger and the seizure of his parent’s car from the side of
the road. Fourth Amendment rights are personal, and, therefore, a defendant cannot claim a
violation of his Fourth Amendment rights based only an illegal search and seizure of a third
person's property. See Illinois v. Andreas, 463 U.S. 765, 771 (1983) (“If the inspection by police
does not intrude upon a legitimate expectation of privacy, there is no ‘search’....”); United States
v. Mosley, 743 F.3d 1317, 1322 (10th Cir. 2014) (internal quotation marks omitted). In other
words, the capacity to claim the protection of the Fourth Amendment depends upon whether the
person who claims the protection has a legitimate expectation of privacy in the invaded place.
Minnesota v. Carter, 525 U.S. 83, 88 (1998). Thus, a person seeking to suppress evidence
produced as the result of a vehicle search challenge must establish that he has a possessory or
property interest in the vehicle searched.
Here, Plaintiff’s allegations concern a friend’s vehicle and his parent’s vehicle (ECF No.
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17, p. 18-19). Because Plaintiff did not have a possessory interest in either of these cars, he did
not have any legitimate expectation of privacy that could give rise to any Fourth Amendment
violations. As such, these claims will be dismissed. Cf. United States v. Oceguedo, 605 F.3d
719 (10th Cir. 2015).
3.

Claim Three
In Claim Three, Plaintiff asserts Sixth Amendment violations concerning his criminal

conviction. These claims are barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994).
Pursuant to Heck, if a judgment for damages necessarily would imply the invalidity of a criminal
conviction or sentence, the action does not arise until the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by an authorized state
tribunal, or called into question by the issuance of a federal habeas writ. See Heck, 512 U.S. at
486-87.
It is apparent that Plaintiff has not invalidated the conviction and sentence at issue and a
judgment in Claim Three necessarily would imply the invalidity of Plaintiff’s criminal
conviction or sentence. The Court, therefore, finds that Plaintiff’s claims for damages
challenging the validity of his state court conviction are barred by the rule in Heck. Therefore,
Claim Two will be dismissed pursuant to Heck. Although this claim will be dismissed without
prejudice, see Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996), it will be dismissed
for failure to state a claim, see Hafed v. Fed. Bureau of Prisons, et al., 635 F.3d 1172 (10th Cir.
2010) (citing Davis v. Kan. Dep’t of Corr., 507 F.3d 1246, 1248-49 (10th Cir. 2007)).
4.

Claim Four
In his Fourth Claim, Plaintiff’s allegations concerning violations of the Fourteenth

Amendment for the time period of from May 11, 2013 through May 11, 2015 include the
following.
10

A.

On July 21, 2013, City of Aurora police failed to issue a ticket to Justin Flowers
for $715.00 worth of property damage (ECF No. 17, p. 20, ¶ 1).

B.

Unequal applications of the law when William Hale Wilbur Richmond and
Rashaun "Congo" Thompson were cut loose off probation but Plaintiff was hit
with a bogus charge on June 16, 2014 by the Aurora Police (ECF No. 17, p. 22, ¶
9).

C.

Plaintiff was denied meritorious unemployment claims (ECF No. 17, p. 23, ¶¶ 1214).

D.

Probation Officers Kim Corazza Anna Lokshina, Michael Vallejos and Fran
Jamison sent inaccurate information on their background check releases by
sending a debt to collections for fees for supervision, which Plaintiff describes as
defamation, slander and libel (ECF No. 17, p. 24, ¶¶6, 18).

Plaintiff premises liability for these claims on the Fourteenth Amendment, which
provides as follows.
Section 1. All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.
Const. Amend. 14.
The Fourteenth Amendment's Due Process Clause protects persons against deprivations
of life, liberty, or property; and those who seek to invoke its procedural protection must establish
that one of these interests is at stake. A liberty interest may arise from the Constitution itself, by
reason of guarantees implicit in the word “liberty,” see, e.g., Vitek v. Jones, 445 U.S. 480,
493-494 (1980) (liberty interest in avoiding involuntary psychiatric treatment and transfer to
mental institution), or it may arise from an expectation or interest created by state laws or
policies, see, e.g., Wolff v. McDonnell, 418 U.S. 539, 556-558 (1974) (liberty interest in avoiding
withdrawal of state-created system of good-time credits).
With respect to his first subclaim, failure to investigate an alleged crime, there is no
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constitutional right to have law enforcement officials investigate a reported crime. See e.g.,
Parkhurst v. Tabor, 569 F.3d 861, 866 (8th Cir. 2009); Sheets v. Mullins, 287 F.3d 581 (6th Cir.
2002); Doe v. Mayor and City of Council of Pocomoke City, 745 F.Supp. 1137, 1139 (D. Md.
1990) (“The Court is not aware of a constitutional, statutory, or common law right that a private
citizen has to require a public official to investigate or prosecute a crime.”). “The Due Process
Clause of the Fourteenth Amendment does not impose upon the state an affirmative duty to
protect its citizens [against illegal private acts], but rather, places limitations on affirmative state
action that denies life, liberty, or property without due process of law.” Kallstrom v. City of
Columbus, 136 F.3d 1055, 1065 (6th Cir. 1998) (citing DeShaney v. Winnebago County Dep't of
Social Servs., 489 U.S. 189, 195 (1989)).
[F]ederal courts are not entrusted with the responsibility of ensuring the effective
enforcement of state criminal laws; that role falls to state and local law enforcement authorities.
It is the duty of executive officials—not the courts—to take care that the criminal laws are
faithfully executed.” Jennings v. City of Stillwater, 383 F.3d 1199, 1205 (10th Cir. 2004) (citing
U.S. Const., art. II, § 3; Morrison v. Olson, 487 U.S. 654, 690 (1988)); see also Slagel v. Shell
Oil Refinery, 811 F. Supp. 378, 382 (C.D. Ill. 1993)(police officer had no constitutional duty to
conduct investigation of plaintiff's assault charge), aff'd, 23 F.3d 410 (7th Cir. 1994). In short,
“the law is clear that a private citizen has no constitutional, statutory, or common law right to
require a public official to investigate or prosecute a crime.” Woods v. Miamisburg City Schools,
254 F.Supp.2d 868, 873 (S.D. Ohio 2003) (citations omitted). Accordingly, this claim will be
dismissed.
In his second subclaim, Plaintiff alleges the unequal application of the law. The Equal
Protection Clause provides that “[n]o state shall ... deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend. XIV, § 1.A. To state a claim under the Equal
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Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally discriminated
against the plaintiff because of membership in a protected class. Washington v. Davis, 426 U.S.
229, 247–48 (1976). To prevail on an equal protection claim, a plaintiff must show that he was
treated differently from others who were similarly situated. City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439–40 (1985); Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 532 (10th
Cir. 1998). “The Equal Protection Clause does not forbid classifications. It simply keeps
governmental decisionmakers from treating differently persons who are in all relevant respects
alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (emphasis added). When the plaintiff is not a
member of a protected class and does not assert a fundamental right, the Court must determine
only whether government classifications have a rational basis. See Stephens v. Thomas, 19 F.3d
498, 501 (10th Cir.), cert. denied, 513 U.S. 1002 (1994).
In this case, Plaintiff provides no explanation for this claim and no factual support. He
does not claim that he has been treated differently than another who is similarly situated. He
simply complains that other people were released from probation when he was not. Plaintiff's
conclusory allegation establishes no factual basis for such a claim. See Brown v. Zavaras, 63
F.3d 967, 972 (10th Cir. 1995). Plaintiff does not allege that the actions regarding the decision to
charge him on June 14, 2014 were directed at him due to a protected classification, that any
fundamental right was implicated, or that the charges were not rationally related to a legitimate
government interest, let alone that the charges did not substantially further any compelling
governmental interests, City of Cleburne, 473 U.S. at 440, as required under a strict scrutiny
analysis. He simply uses the term “equal protection.”
A pro se plaintiff's complaint must be broadly construed. Erickson v. Pardus, 551 U.S.
89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). Notwithstanding, the generous
construction to be given the pro se litigant's allegations “does not relieve the plaintiff of the
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burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A reviewing court need not accept “mere
conclusions characterizing pleaded facts.” Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th
Cir. 1990); see also Twombly, 550 U.S. at 555 (“While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” (quotations and citations omitted)).
The court “will not supply additional factual allegations to round out a plaintiff's complaint or
construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170,
1173–74 (10th Cir. 1997). Therefore, this claim shall be dismissed from this action without
prejudice for failure to state a claim upon which relief may be granted.
In his third subclaim, Plaintiff complains that he was denied meritorious unemployment
claims. He has named as Defendants the Director of the Colorado Department of Labor and
Employment and hearing and appellate officers who presided over his unemployment
compensation proceedings. This Court is precluded from reviewing such claims under the
Rooker-Feldman doctrine.
Pursuant to Fed. R. Civ. P. 12(h)(3), the Court must dismiss an action if the Court lacks
subject matter jurisdiction. The issue of subject matter jurisdiction may be raised sua sponte by
the Court at any time during the course of the proceedings. See McAlester v. United Air Lines,
Inc., 851 F.2d 1249, 1252 (10th Cir. 1988). “The party seeking to invoke the jurisdiction of a
federal court must demonstrate that the case is within the court's jurisdiction.” United States v.
Bustillos, 31 F.3d 931, 933 (10th Cir. 1994).
The Rooker–Feldman doctrine provides that federal courts, other than the United States
Supreme Court, lack jurisdiction to adjudicate claims seeking review of state court judgments.
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See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983); Rooker v.
Fidelity Trust Co., 263 U.S. 413, 415–16 (1923); see also Freeman v. Brock, 33 F. App'x 958,
961 (10th Cir. 2002) (applying Rooker/Feldman doctrine to an appeal of a state commission's
denial of unemployment compensation). The Rooker–Feldman doctrine precludes “cases
brought by state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and rejection
of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005);
see also Johnson v. De Grandy, 512 U.S. 997, 1005–06 (1994) (stating that the losing party in a
state court proceeding is generally “barred from seeking what in substance would be appellate
review of the state court judgment in a United States district court, based on the losing party's
claim that the state judgment itself violates the loser's federal rights”). Review of the state court
judgment must proceed to the state's highest court and then to the United States Supreme Court
pursuant to 28 U.S.C. § 1257. See Facio v. Jones, 929 F.2d 541, 543 (10th Cir. 1991).
Plaintiff challenges the State's decision to deny him benefits. The denial of
unemployment compensation was the deprivation ordered by the State. The Amended Complaint
challenges the actions of Defendants that participated in the unemployment compensation
proceedings. The Amended Complaint is a direct attack on the state court's judgment because an
element of the Complaint is that the judgment was wrongful. Review of the claims would
require the Court to review the state court decisions that dealt with the denial. Therefore, the
Court finds that the Complaint must be dismissed for lack of subject matter jurisdiction pursuant
to the Rooker–Feldman doctrine.
In his fourth subclaim, Plaintiff alleges that various probation officers sent inaccurate
information on their background check releases by sending a debt to collections for fees for
supervision, which Plaintiff describes as defamation, slander and libel. As an initial matter, the
15

discussion above reveals that the probation officers are entitled to absolute immunity for their
actions in this regard. Moreover, claims of defamation, slander and libel are not actionable in a
§ 1983 claim. Siegert v. Gilley, 500 U.S. 226, 233 (1991); Angel v. Torrance County Sheriff's
Dept., 183 F. App’x 707 (10th Cir. 2006). Accordingly, these claims will be dismissed.
5.

Claim Five
In his Fifth Claim, Plaintiff claims violations of the Fair Credit Reporting Act (FCRA).

The FCRA imposes a duty on persons who provide information to credit reporting agencies
(“furnishers”) to accurately report information. 15 U.S.C. § 1681s–2(a). While it also gives
consumers a private right of action against those who violate its provisions, see 15 U.S.C. §
1681n (right of action against willful violators); 15 U.S.C. § 1681o (right of action against
negligent violators), that right of action is limited to claims against the credit reporting agency; it
does not extend to furnishers to agencies. Sanders v. Mountain America Federal Credit Union,
689 F.3d 1138, 1147 (10th Cir. 2012). Accordingly, this claim will be dismissed.
6.

Claim Six
In his Sixth Claim, Plaintiff alleges that the Aurora Police, Denver Police, Denver

District Attorney, and Google all acted in conjunction with one another and defamed the
Plaintiffs character for about nine (9) years through their posting of an article that lacked
integrity, validity, or merit. In Paul v. Davis, 424 U.S. 693 (1976), the United States Supreme
Court held that Davis' s 1983 action for damages against police chiefs who had distributed a
“flyer” to area merchants which contained his name and photograph and identified him as an
“Active Shoplifter” did not state an actionable claim under § 1983 because injury to reputation is
not a deprivation of a protected property or liberty right. Thus, while Plaintiff may initiate a
state court tort claim based on violations of state law, there is no constitutional violation here.
Accord McCarty v. City of Bartlesville, 8 F. App’x 867, 875 (10th Cir. 2001); Lancaster v.
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Independent Sch. Dist. No. 5, 149 F.3d 1228, 1235 (10th Cir. 1998) (“While the injury to
reputation asserted by the plaintiff may be actionable under state tort law, it falls far short of a
constitutional violation.”) (footnote omitted). Thus, this claim must be dismissed as well.
7.

Claim Seven
In his final Claim, Plaintiff makes a broad allegation of conspiracy but merely reiterates

his previous claims. Mr. Marner has failed to allege facts sufficient to suggest the existence of
any of the elements of a conspiracy. See Bivens Gardens Office Bldg. v. Barnett Banks, Inc., 140
F.3d 898, 912 (11th Cir. 1998) (to state a claim for civil conspiracy, a plaintiff must allege “an
agreement between two or more people to achieve an illegal objective, an overt act in
furtherance of that illegal objective, and a resulting injury to the plaintiff”). Although claims of
civil conspiracy need not be pleaded with particularity, a plaintiff must indicate the parties
involved, the general purpose of the conspiracy, and the approximate date, so that a defendant is
put on notice of the claims against him. Hoskins v. Poelstra, 320 F .3d 761, 764 (7th Cir. 2003).
Mr. Marner’s allegations fail to state a claim for conspiracy. Accord Custard v. Young, Civil No.
06-01114, 2008 WL 791954, 9 (D. Colo. Mar 20, 2008). Accordingly, this claim also must be
dismissed.
Thus, accepting Plaintiff’s allegations as true, he fails to state a claim upon which releif
may be granted. Accordingly, it is
ORDERED that the Complaint and this action are DISMISSED pursuant to 28 U.S.C. §
1915(e)(2)(B) and/or 28 U.S.C. § 1915A. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
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 Plaintiff files a
notice of appeal he must also pay the full $505 appellate filing fee or file a motion to proceed in
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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 at Denver, Colorado, this

13th day of August, 2015.
BY THE COURT:

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

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