Harold et al v. Denver County Human Services et al

Filing 25

ORDER TO AMEND by Magistrate Judge Gordon P. Gallagher on 2/25/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01919-GPG
RONALD HAROLD, and as the widower and next of kin for wife, the late Olive Harold,
Plaintiffs,
v.
UNIVERSITY OF COLORADO HOSPITAL,
CITY AND COUNTY OF DENVER,
MAYOR MICHAEL HANCOCK,
DENVER DEPARTMENT OF HUMANS SERVICES,
DON MARES,
DENVER DEPARTMENT OF HUMAN SERVICES, ADULT PROTECTION UNIT,
JUANITA-RIOS JOHNSTON
QUALITY PARTNERS HEALTH CARE SERVICES, LLC,
VIVAGE QUALITY HEALTH CARE PARTNERS,
HIGHLINE REHABILITATION & CARE CENTER,
JEFFREY A. RICHARDSON,
KIM M. RUSSELL,
LISA MARIE DIPONIO,
DAVID M. BERNHART, JR., ESQ.,
REBECCA PARKER,
TAMMY MONTGOMERY,
ERIN EGAN,
STACY GIBBS, and
DERRIC MONTANO,
Defendants.

ORDER TO AMEND

Plaintiff, Ronald Harold, is a resident of Denver Colorado. He initiated this action
on September 3, 2015 by filing a Complaint (ECF No. 1). He has been granted leave to
proceed in forma pauperis. (ECF No. 24).

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On September 24, 2015, the Court reviewed Plaintiff’s Complaint and determined
it was deficient. Therefore, Plaintiff was ordered to cure certain designated deficiencies
if he wished to pursue his claims. (ECF No. 6). On October 23, 2015, Plaintiff filed an
amended complaint, which was 190 pages long and asserted eighteen claims for relief
against twenty-one defendants. (ECF No. 7). The Court reviewed the amended
complaint and again determined it was deficient. Plaintiff was again directed to cure
certain designated deficiencies and file a Second Amended Complaint if he wished to
pursue his claims in this action. (ECF No. 14). Specifically, Magistrate Gallagher
directed Plaintiff to file his Second Amended Complaint on the court-approved form and
to file a Second Amended Complaint that complies with the pleading requirements of
Rule 8 of the Federal Rules of Civil Procedure.
On November 12, 2015, Plaintiff filed an Emergency Motion for a Stay of Action
(ECF No. 12) and Emergency Motion to Relocate Plaintiff’s Wife to Another Nursing
Facility (ECF No. 13). In these motions, Mr. Harold requested this Court to stay a
Permanent Civil Protection Order issued by Denver Probate Judge Leith, which
prevented Plaintiff from seeing his wife. He also requested that this Court order his wife
to be transferred to another nursing facility. Both of these motions were denied by the
Court on November 23, 2015. (ECF No. 15).
After receiving two extensions of time, Plaintiff filed a Second Amended Complaint
on January 13, 2016. (ECF No. 23). The Court must construe the Second Amended
Complaint liberally because Plaintiff 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.

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1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935
F.2d at 1110. For the following reasons, Plaintiff will be directed to file a third amended
complaint if he wishes to pursue his claims in this action.
I.

Background

Mr. Harold’s Second Amended Complaint is 74 pages long. It names himself
personally as a Plaintiff, as well as himself as widower and next of kin for his wife, the late
Olive Harold. It asserts thirty-nine claims for relief against twenty defendants.
(Although only nineteen defendants are listed in the caption page, the text of the Second
Amended Complaint includes a claim against Defendant Judge Elizabeth Leith, who is
not listed in the caption).
The allegations in the Second Amended Complaint surround the fact that Mr.
Harold’s eighty-seven year old wife, Olive Harold, became a ward of the state. Mrs.
Harold passed away on November 15, 2015, after this legal action was initiated. At the
time of her passing, she resided at Highline Rehabilitation and Care Community.
Mr. Harold believes his and his late wife’s constitutional rights were violated during
the legal proceedings that resulted in Mrs. Harold becoming a ward of the state and a
Temporary and then Permanent Civil Protection Order being entered against Mr. Harold.
Plaintiff also believes numerous defendants failed to provide adequate medical care to
Mrs. Harold. Further, he claims that the refusal to allow him to see or communicate with
his wife violated their constitutional rights. He seeks damages.

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II.

Second Amended Complaint
A. Claim Against Defendant Judge Leith

First, Mr. Harold’s claim against Judge Leith is barred by absolute judicial
immunity. Judges are absolutely immune from liability in civil rights suits for damages for
actions taken in their judicial capacity unless the judge was acting in the clear absence of
all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435
th

U.S. 349, 356-57 (1978); Hunt v. Bennett, 17 F.3d 1263, 1266-67 (10 Cir. 1994). Mr.
Harold does not allege any facts that demonstrate Judge Leith acted outside the scope of
her absolute immunity with respect to her rulings in the probate cases. (See ECF No. 23
at 64). Therefore, unless Plaintiff demonstrates that Judge Leith is not entitled to
absolute judicial immunity, she should not be included as a Defendant in Plaintiff’s Third
Amended Complaint.
B. Claims Against Denver Department of Human Services, Denver
Department of Human Services – Adult Protection Unit, University
of Colorado Hospital, and State Officials in their Official Capacity.
The Denver Department of Human Services, the Denver Department of Human
Services – Adult Protection Unit, and the University of Colorado Hospital are entities of
the State of Colorado and, therefore, 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); see also Jackson v. City and County of Denver, 628
F. Supp. 2d 1275, 1285 (D. Colo. 2008) (citing Freeman v. White, 2006 U.S. Dist. LEXIS
70315, 2006 WL 2793139, at *8-9 (D. Colo. Sept 28, 2006) ("DDHS is in all cases an arm
of the state for purposes of Eleventh Amendment immunity."). Similarly, the official

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capacity claims against state officials are construed as claims asserted against the State
of Colorado. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (stating that claims asserted
against government officials in their official capacities are construed against the
governmental entity). “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), overrruled on other grounds by Ellis v. University of
Kansas Med. Ctr., 163 F.3d 1186 (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 § 1983 did not abrogate
Eleventh Amendment immunity, see Quern v. Jordan, 440 U.S. 332, 340-345 (1979).
Defendants, the Denver Department of Human Services, the Denver Department
of Human Services – Adult Protection Unit, the University of Colorado Hospital, and the
state employees in their official capacities, therefore, are improper parties to this action.
C. Claims Against the City and County of Denver.
Municipalities and municipal entities, such as the City and County of Denver, are
not liable under § 1983 solely because their employees inflict injury on a plaintiff. Monell v.
New York City Dep't of Social Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978); Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). To establish
liability, a plaintiff must show that a policy or custom exists and that there is a direct causal
link between the policy or custom and the injury alleged. City of Canton, Ohio v. Harris,

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489 U.S. 378, 385, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989). Plaintiff cannot state a
claim for relief against the City and County of Denver under § 1983 merely by pointing to
isolated incidents. See Monell, 436 U.S. at 694. Vague and conclusory allegations are
insufficient to establish "a direct causal link between the municipal action and the
deprivation of federal rights." Board of County Com'rs of Bryan County, Okl. v. Brown, 520
U.S. 397, 404, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997).
In the Second Amended Complaint, Plaintiff alleges that the City and County of
Denver exhibited deliberate indifference to the medical needs of Mrs. Harold, but fails to
allege that any purported constitutional violation was caused by a policy or custom of the
City and County of Denver. (ECF No. 23 at 68-69). Therefore, the City and County of
Denver appears to be an inappropriate party in this action.
D. Claims Against Mayor Hancock, Don Mares, and Juanita
Rios-Johnston
Next, Plaintiff fails to allege personal participation of Defendants Mayor Hancock,
Don Mares, the DDHS Director, and Juanita Rios-Johnston, the DDHS-Adult Protection
Services Director. Personal participation is an essential allegation in a civil rights action.
See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal
participation, Mr. Harold must show that each defendant caused the deprivation of a
federal right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). There must be an
affirmative link between the alleged constitutional violation and each defendant’s
participation, control or direction, or failure to supervise. See Butler v. City of Norman, 992
F.2d 1053, 1055 (10th Cir. 1993). A supervisory official may not be held liable for the

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unconstitutional conduct of his or her subordinates on a theory of respondeat superior.
See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Furthermore,
when a plaintiff sues an official under § 1983 for conduct
"arising from his or her superintendent responsibilities," the
plaintiff must plausibly plead and eventually prove not only
that the official’s subordinates violated the Constitution, but
that the official by virtue of his own conduct and state of mind
did so as well.
See Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556 U.S.
at 677). Therefore, in order to succeed in a § 1983 suit against a government official for
conduct that arises out of his or her supervisory responsibilities, a plaintiff must allege and
demonstrate that: "(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." Id. at 1199.
In his claims against Defendants Hancock, Mares, and Rios-Johnston, Plaintiff
alleges that they “authorized and supported” Defendant Russell’s wrongful, illegal and
unconstitutional 45-day detention and false imprisonment. However, the only specific
factual allegation relating to the conclusory statement that these Defendants “authorized”
any unconstitutional misconduct is that Plaintiff states he informed them of the alleged
misconduct either in person, through the mail, or by phone. (ECF No. 23 at 66, 67, 69).
These allegations fail to demonstrate that the Defendants personally participated in any
alleged constitutional violations based on their supervisory responsibilities. Accordingly,
in the Third Amended Complaint, Plaintiff should not include these Defendants unless he

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can adequately demonstrate they personally participated in the alleged constitutional
violations.
E. State Action
Additionally, Plaintiff’s Second Amended Complaint fails to demonstrate that
numerous defendants were acting under color of state law. In the court’s November 18,
2015 Order, Plaintiff was directed that he should name as defendants only that persons
that he contends were acting under color of state law. (ECF No. 14 at 6). Section 1983
"provides a federal cause of action against any person who, acting under color of state
law, deprives another of his federal rights." Conn v. Gabbert, 526 U.S. 286, 290 (1999);
see also Wyatt v. Cole, 504 U.S. 158, 161 (1992) ("[T]he purpose of § 1983 is to deter
state actors from using the badge of their authority to deprive individuals of their federally
guaranteed rights and to provide relief to victims if such deterrence fails."). "Like the
state-action requirement of the Fourteenth Amendment, the under-color-of-state-law
element of § 1983 excludes from its reach merely private conduct, no matter how
discriminatory or wrongful." See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999) (quotation marks omitted).
Private conduct constitutes state action only if it is "fairly attributable to the State."
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). Further, while state action can
be "present if a private party is a ‘willful participant in joint action with the State or its
agents,’" Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1453 (10th Cir.1995)
(quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)), "the mere acquiescence of a state
official in the actions of a private party is not sufficient," id. (citing Flagg Bros. v. Brooks,

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436 U.S. 149, 164 (1978)). "[C]onstitutional standards are invoked only when it can be
said that the State is responsible for the specific conduct of which the plaintiff complains."
Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Moreover, a § 1983 plaintiff must allege
more than conclusory allegations of a conspiracy between state actors and private
defendants. See Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (holding
conclusory allegation of conspiracy with state actors insufficient to extend § 1983 liability
to private defendant); Hunt v. Bennett, 17 F.3d 1263, 1268 (10th Cir.1994) (same).
1. Claims Against Quality Partners Health Care Services, LLC,
Vivage Quality Health Care Partners, and Highline
Rehabilitation and Care Community.
Plaintiff’s Second Amended Complaint fails to demonstrate that Defendants
Quality Partners Health Care Services, LLC, Vivage Quality Health Care Partners, and
Highline Rehabilitation and Care Community were acting under “color of state law.”
Mr. Harold does not allege any specific facts to show that those Defendants’
actions were fairly attributable to the state and resulted in a deprivation of Plaintiff’s
constitutional rights. Instead, Plaintiff simply makes conclusory allegations that they
were “acting under color of law.” Such conclusory allegations do not adequately
demonstrate state action necessary for § 1983 liability.
2. Claims Against Defendants Derric Montano, Stacy Gibbs, Dr.
Erin Egan, Lisa DiPonio, Jeffrey Richardson, Rebecca Parker,
and Tammy Montgomery
Likewise, the Second Amended Complaint fails to demonstrate that Defendants
Derric Montano, Stacy Gibbs, Dr. Erin Egan, Lisa DiPonio, Jeffrey Richardson, Rebecca
Parker, and Tammy Montgomery were acting under “color of state law” when they

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allegedly violated Plaintiff’s constitutional rights. Plaintiff asserts that Derric Montano,
Stacy Gibbs, Jeffrey Richardson, Rebecca Parker, and Tammy Montgomery are
employees of the Highline Rehabilitation and Care Community, Dr. Erin Egan is
employed by Rocky Mountain Senior Care, and Lisa DiPonio is employed at Diponio &
Diponio.
The Second Amended Complaint simply makes conclusory allegations that these
Defendants were “acting under color of state law.” Such conclusory allegations are
insufficient to demonstrate a nexus between the state and the individuals to justify § 1983
liability.
In the Third Amended Complaint, Plaintiff should demonstrate that the Defendants
were “acting under color of state law” if he wishes to pursue § 1983 claims against them.
F.

Rooker-Feldman Doctrine

Finally, Plaintiff is reminded that this court is without jurisdiction to overturn
decisions of the Denver Probate Court. The Rooker-Feldman doctrine provides that
lower federal courts are without subject matter jurisdiction to hear claims actually decided
by a state court, or claims that are "inextricably intertwined" with a state court judgment.
See Haas v. Stewart, No. 05-cv-02556-MSK-CBS, 2006 U.S. Dist. LEXIS 69290, *8-11
(D. Colo. Sept. 15, 2006); Guttman v. Khalsa, 401 F.3d 1170, 1173 (10th Cir. 2005). The
doctrine exists to prevent a party losing in state court from seeking what, in substance,
would be appellate review of a state court decision in a United States District Court, based
on the losing party's claim that the state court order itself violates the loser's federal rights.
Id. In determining whether claims of constitutional violations are "inextricably

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intertwined" with the state court proceedings, the Court inquires whether the state court
judgment caused, actually and proximately, the injury for which the Plaintiffs seek
redress. Id. Therefore, to the extent any of Plaintiff’s claims involve injuries that were
actually and proximately caused as a result of the Denver Probate Court proceedings,
such claims are barred in this action by the Rooker-Feldman doctrine.
Accordingly, it is
ORDERED that Plaintiff file, within thirty (30) days from the date of this order,
a Third Amended Complaint as directed in this order. It is
FURTHER ORDERED that Plaintiff shall obtain the court-approved Complaint
form, along with the applicable instructions, at www.cod.uscourts.gov and use that form
to file his Third Amended Complaint. It is
FURTHER ORDERED that, if Plaintiff fails to file a Third Amended Complaint that
complies with this order within the time allowed, the action may be dismissed without
further notice.
DATED February 25, 2016, at Denver, Colorado.
BY THE COURT:
s/Gordon P. Gallagher
United States Magistrate Judge
United States District Court

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