Aguilar v. Colorado State Penententry, et al
ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/31/16. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-1481-GPG
LAZARO AGUILAR, Inmate No. 1480278,
COLORADO STATE PENITENTIARY; and
SAINT THOMAS MORE HOSPITAL,
ORDER OF DISMISSAL
Plaintiff Lazaro Aguilar is in the custody of the Colorado Department of
Corrections, currently incarcerated at the Sterling Correctional Facility in Sterling,
Colorado. Plaintiff initiated this action on July 13, 2015 by filing pro se a Prisoner
Complaint. (ECF No. 1).
In his Complaint, Plaintiff alleges that he was mistreated by various medical
providers at the Colorado State Penitentiary (“CSP”) with respect to his medical needs
on a number of different occasions. As to Saint Thomas More Hospital (“STMH”),
Plaintiff alleges he received inadequate medical care on February 24, 2015, when he
was transported from the CSP to STMH, after he was involved in a fight. He seeks
monetary and injunctive relief.
Before this Court conducted its initial review pursuant to D.C.COLO.LCivR 8.1(b),
Plaintiff served Defendant STMH with his complaint. On September 9, 2015, STMH
filed a Motion to Dismiss (ECF No. 8) claiming that the complaint should be dismissed
against it because this court lacks subject matter jurisdiction and Plaintiff fails to state a
claim upon which relief may be granted. STMH argues it is a private non-profit hospital
and should not be considered a state actor for purposes of a § 1983 claim.
On September 10, 2015, the Court directed Plaintiff to file an amended complaint
or, in the alternative, to file a response to STMH’s Motion to Dismiss. (ECF No. 13). In
response, on September 29, 2015, Plaintiff filed a document entitled “Motion of Amend”
(ECF No. 16), which the Court construed as a Motion for leave to amend. Because the
Court already directed Plaintiff to file an amended complaint, the Court denied the
motion for leave to amend as moot. (ECF No. 19).
After receiving an extension of time, Plaintiff filed an Amended Complaint (ECF
No. 25) and a Response to the Motion to Dismiss Complaint (ECF No. 26) on
November 12, 2015. On November 25, 2015, STMH filed a Reply to the Motion to
Dismiss and a Motion to Dismiss Plaintiff’s Amended Complaint. (ECF No. 30). On
December 11, 2015, the Court ordered Plaintiff to respond to Defendant’s Motion to
Dismiss his Amended Complaint no later than January 11, 2016. (ECF No. 32).
Plaintiff failed to timely respond, but in an abundance of caution, on January 28,
2016, the Court issued an order allowing Plaintiff an additional opportunity to file a
Second Amended Complaint. (ECF No. 38).
When filing his Second Amended
Complaint, the Court directed Plaintiff that: (1) it must be on the court-approved
complaint form; (2) it must contain allegations that STMH, a private corporation, should
be considered a state actor for purposes of imposing liability under § 1983; (3) if STMH
is considered a state actor, Plaintiff must allege specific facts that demonstrate he
suffered an injury caused by an “official policy or custom” of STMH; (4) CSP is entitled
to Eleventh Amendment immunity and therefore, is not a proper party to this action; (5)
if he adds additional defendants, he must assert personal participation by the named
defendants in the constitutional violation; and (6) finally, he must adequately allege a
constitutional violation of deliberate indifference to a serious medical need.
In response, Plaintiff filed a Second Amended Complaint on March 18, 2016.
(ECF No. 46). The Court must construe the Second Amended Complaint liberally
because Mr. Aguilar 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 (10 Cir. 1991). If the
Second Amended 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.
Mr. Aguilar has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. (ECF No. 4). Subsection (e)(2)(B) of § 1915 requires a court to
dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks
monetary relief against 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, 327-28 (1989). For the following reasons, the Second
Amended Complaint will be dismissed as legally frivolous.
In the Court’s January 28, 2016 Order, Magistrate Judge Gallagher directed
Plaintiff to provide allegations that STMH should be considered a state actor for
purposes of imposing liability under § 1983. In addition, Magistrate Judge Gallagher
also directed Plaintiff in the January 28, 2016 Order that even if STMH is considered a
state actor, it cannot be held liable under § 1983 based on the doctrine of respondeat
superior. (ECF No. 38 (citing Selhime v. Carlson, 12-cv-02876-RBJ-CBS, 2013 U.S.
Dist. LEXIS 185297, at *27 (D. Colo. Nov. 12, 2013) (“St Thomas More Hospital ‘cannot
be liable under § 1983 based on the doctrine of respondeat superior.’” (citations
omitted))). Instead, Plaintiff must allege specific facts that demonstrate he suffered an
injury caused by an official policy or custom of STMH. See Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1216 (10th Cir. 2003) (holding that traditional municipal liability principles
apply to claims brought pursuant to 42 U.S.C. § 1983 against private corporations).
In the Second Amended Complaint, Plaintiff alleges that STMH is contracted by
the State of Colorado to provide medical treatment for Colorado prisoners. (ECF No. 47
at 6). It is not necessary to determine if Plaintiff’s allegations are sufficient for STMH to
be considered a state actor, because the Second Amended Complaint fails to allege
any official policy or custom of STMH that was responsible for the alleged constitutional
violation. As already noted, STMH cannot be liable under § 1983 on a doctrine of
respondeant superior. Therefore, all claims against STMH are dismissed as legally
All of the constitutional claims asserted against Defendant CSP pursuant to
§ 1983 are barred by Eleventh Amendment immunity. Eleventh Amendment immunity
extends to states and state agencies deemed “arms of the state” that have not waived
their immunity, regardless of the relief sought. Steadfast Ins. Co. v. Agricultural Ins.
Co., 507 F.3d 1250, 1252–53 (10th Cir. 2007). The CSP is not a separate entity apart
from the Colorado Department of Corrections (CDOC), which is a state agency and is
entitled to Eleventh Amendment immunity. See Griess v. Colorado, 841 F.2d 1042,
1044-45 (10th Cir. 1988) (immunity of CDOC). Congress did not abrogate Eleventh
Amendment immunity through § 1983. See Quern v. Jordan, 440 U.S. 332, 345 (1979).
Magistrate Judge Gallagher warned Plaintiff in the January 28, 2016 Order that the CSP
was entitled to Eleventh Amendment immunity and, therefore, was not a proper party to
this action. Thus, Mr. Aguilar’s claims against CSP must be dismissed.
Furthermore, 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 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 Second Amended Complaint (ECF No. 47) and this action
are dismissed with prejudice as legally frivolous. 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. It is
FURTHER ORDERED that all pending motions are denied as moot.
DATED at Denver, Colorado, this 31st day of
BY THE COURT:
s/Lewis T. Babcock_____________
LEWIS T. BABCOCK, Senior Judge
United States District Court
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