Aguilar v. Colorado State Govenor et al

Filing 19

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/28/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-1713-GPG
LAZARO AGUILAR; Inmate No. 1480278,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS; and
COLORADO STATE PENITENTIARY,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Lazaro Aguilar, is in the custody of the Colorado Department of
Corrections, currently incarcerated at the Colorado State Penitentiary in Canon City,
Colorado. On August 10, 2015, Mr. Aguilar filed pro se a Prisoner Complaint. (ECF No.
1). He has been granted leave to proceed in forma pauperis. (ECF No. 4).
On August 11, 2015, Magistrate Judge Gordon P. Gallagher ordered Plaintiff to
file an amended complaint. (ECF No. 5). Specifically, Magistrate Gallagher directed
Plaintiff to file a complaint that complied with the pleading requirements of Rule 8 of the
Federal Rules of Civil Procedure. Also, Plaintiff was instructed that the Colorado
Department of Corrections and the Colorado State Penitentiary were not proper parties
because they are protected by Eleventh Amendment immunity. Further, the Court
informed Plaintiff that he must allege personal participation, beyond that of merely
signing a bill into law, against Governor Hickenlooper, who was named as a defendant
in Plaintiff’s original complaint.

1

In response, Plaintiff filed an amended complaint on October 19, 2015 (ECF No.
10). However, the amended complaint was against the same defendants and suffered
from the same deficiencies. Therefore, on December 11, 2015, Magistrate Judge
Gallagher again ordered Plaintiff to file an amended complaint if he wished to pursue his
claims in this action. (ECF No. 13). The second order to amend notified Plaintiff of the
same deficiencies: (1) the complaint failed to comply with Rule 8 of the Federal Rules of
Civil Procedure; (2) the Colorado Department of Corrections and the Colorado State
Penitentiary were not proper parties because any claims were barred by Eleventh
Amendment immunity; and (3) any claims against Governor Hickenlooper must include
allegations of personal participation beyond signing a bill into law.
On January 4, 2016, Plaintiff filed an Amended Complaint against the same three
defendants. (ECF No. 16). Then, on January 25, 2016, Plaintiff filed another Amended
Complaint, dropping Governor Hickenlooper as a defendant, but still naming the
Colorado Department of Corrections and the Colorado State Penitentiary as
defendants. (ECF No. 17).
The court must construe the 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 (10th Cir. 1991). However, the court should not
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons
discussed below, the Amended Complaint and this action will be dismissed.
Plaintiff’s Amended Complaint fails to cure the deficiencies as directed in the
Court’s August 11, 2015 (ECF No. 5) and December 11, 2015 (ECF No. 13) Orders.
Instead of asserting claims against proper parties, as directed, Plaintiff’s Amended

2

Complaint names only the Colorado Department of Corrections and the Colorado State
Penitentiary as defendants. The Court notified Plaintiff two separate times that § 1983
claims against the Colorado Department of Corrections and the Colorado State
Penitentiary are barred by the doctrine of Eleventh Amendment immunity. (ECF Nos. 5
and 13 (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989)). "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). The Colorado Department of Corrections and the Colorado State Penitentiary
are agencies of the State of Colorado. 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 Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1195-96
(10th Cir. 1998). Therefore, Mr. Aguilar’s claims against the Colorado Department of
Corrections and the Colorado State Penitentiary must be dismissed.
Finally, 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

3

ORDERED that the Amended Prisoner Complaint (ECF No. 17) and the action
are dismissed for the reasons stated in this order. 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 28th

day of

January

, 2016.

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

4