Hutson v. State of Colorado et al
ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/8/16. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02336-GPG
STATE OF COLORADO,
GOVERNOR: JOHN HICKENLOOPER,
COLORADO STATES ATTORNEY GENERAL: CYNTHIA H. COFFMAN,
COLORADO SECRETARY OF STATE: WAYNE W. WILLIAMS,
COLORADO DEPARTMENT OF MOTOR VEHICLES: (All of the Officers and
AMERICAN BAR ASSOCIATION: (All licensed bar attorneys and assistants),
COLORADO BAR ASSOCIATION: (All licensed bar attorney and assistants),
MESA COUNTY COURT: (All of the Judges and their assistants),
MESA COUNTY DISTRICT ATTORNEY’S OFFICE: (All of the officers and assistants),
MESA COUNTY SHERIFF: MATT LEWIS,
MESA COUNTY JAIL: (All deputies in the Sheriff’s Department),
CITY OF GRAND JUNCTION,
GRAND JUNCTION POLICE DEPARTMENT (The Chief of Police and everyone under
him down to the meter maid),
EAGLE COUNTY SHERIFF: JAMES VAN BEEK,
EAGLE COUNTY JAIL: (All deputies in the Sheriff’s Department),
CITY OF EAGLE,
EAGLE COUNTY DISTRICT ATTORNEY’S OFFICE (All of the officers and assistants),
EAGLE COUNTY COURTS (All of the Judges and their Assistants),
CITY OF GOLDEN,
JEFFERSON COUNTY SHERIFF: JEFF SHRADER,
JEFFERSON COUNTY JAIL (All deputies in the Sheriff’s Department),
PUEBLO COUNTY SHERIFF: KIRK M. TAYLOR,
PUEBLO COUNTY JAIL (All deputies in the Sheriff’s Department),
PUEBLO COUNTY COURT: (All of the Judges and their assistants),
CITY OF PUEBLO, and
PUEBLO COUTNY DISTRICT ATTORNEY’S OFFICE (All of the officers and
ORDER OF DISMISSAL
On December 10, 2015, Plaintiff Rocky-Lee: Hutson filed on the Court-approved
form a Complaint (ECF No. 7) pursuant to 42 U.S.C. § 1983 naming thirty defendants
and asserting thirty claims for relief.
On December 16, 2015, Magistrate Judge Gordon P. Gallagher reviewed the
Complaint and determined that it was deficient because (1) it did not comply with the
pleading requirements of Rule 8 of the Federal Rules of Civil Procedure; (2) many of the
Defendants were entitled to Eleventh Amendment immunity; (3) some of the Defendants
were private entities and there were no allegations of state action; (4) some of the
Defendants were entitled to absolute judicial and prosecutorial immunity; (5) Plaintiff
failed to allege facts showing that each named Defendant personally participated in a
deprivation of his constitutional rights; and (6) Plaintiff failed to allege facts supporting a
§ 1983 claim for false arrest and imprisonment or malicious prosecution. (See ECF No.
8). Accordingly, Magistrate Judge Gallagher directed Plaintiff to file an Amended
Complaint that complied with the directives of the December 16 Order. (Id.). On
January 4, 2016, Plaintiff filed an Amended Complaint (ECF No. 10) naming the same
thirty defendants and asserting the same thirty claims for relief.
Plaintiff has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. 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. Neitzke v. Williams, 490 U.S. 319,
The Court construes the 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. 1991). However, the Court should not be the
pro se litigant=s advocate. Hall, 935 F.2d at 1110. For the reasons discussed below,
this action will be dismissed.
I. The Amended Complaint
The Amended Complaint does nothing to clarify the allegations of the initial
Complaint and names the same thirty Defendants and re-asserts the same thirty claims
for relief. In the Amended Complaint, Plaintiff alleges the following:
I was arrested on February 19, 2015 by Grand Junction Police
Department, on a Failure to Appear Warrant.
When I asked to see the Warrant, I was told.
‘We don’t have to show you anything’,
When I ask by what authority are you arresting me? The Police Officer
pointed at his Badge and pistol and said
‘This Badge and Gun are my Authority’.
When I demanded to see the Judge, after we arrived at the County Jail.
The Police Officers and the Sheriff Deputies said,
‘You will see the Judge when he/she is ready and not before’.
Everything that was said and done to me from February 19, 2015 to March
09, 2015 is in clear violation of any and all State and Federal Acts, Codes,
Laws, Ordinances, Rules and Statutes. From the time of my arrest my
Civil Rights have been violated by ALL of these entities, agents and
individuals. Now in order for Justice to occur there has to be an injured
party, proof of injury and someone or something that did the injury. I am
the injured party and they did the crime. With their own records they
prove my claim and I want them to pay for their wrongdoings.
(ECF No. 10, at 3).
In support of his claims, Plaintiff further alleges:
1. When I did get in front of the Judges in my cases, the Deputies with
the different Sheriff’s Departments told me not to speak until I was told
2. The District Attorneys [sic] Officers told me to Plead Guilty on the
charges and get time served plus a fine or spend 6 months to a year in
3. I was never shown an arrest warrant.
4. I was never shown the Authority from any one of the officers to do what
5. It is illegal to Threaten, Coerce or intimidate someone to do anything
against their will no matter who you are and this is nothing more than
False arrest, illegal detention (false imprisonment), and malicious
prosecution which are recognized as causes of action under Title 42,
Section 1983. My health has done [sic] down the toilet because of all
of this and it’s not getting any better.
6. I was arrested by Grand Junction Police on February 19, 2015, taken
to the Mesa County Sheriff’s Office at that time.
7. On February 20, 2015 they took me to Eagle County Jail in Eagle
Colorado, I was taken before the Judge on Monday February 24, 2015.
8. Eagle County took me on February 25, 2015 to Jefferson County Jail in
Golden Colorado to wait for Pueblo County Sheriffs [sic] Deputy’s to
pick me up from there.
9. Pueblo County Sheriff took me and held me in their jail until March 09,
2015 when I was released.
10. We do not have debtors prisons in this country but I guess in the State
of Colorado whatever the judges, district attorneys, cops and sheriff
deputies say is just fine, and if, heaven forbid, someone stands up to
make them pay for their wrong doings, oh well we will just have them
killed and say that they were a terrorist and no one knows the
(ECF No. 10, at 10).
Plaintiff then asserts that Defendants violated his civil rights because he was
“detained, arrested and held against my will, denied medications, put in the hospital
from the stress of [defendants’] actions and not allowed to see a judges [sic] in the
proper time limit.” (See ECF No. 10, at 12-49). Plaintiff requests the following relief:
“All I want is what is required by Law for the following violations of these Laws “Title 15
USC 1&2, Title 18 USC 241, 242, 371, 2384, 2385 and Title 42 USC 1983, 1984, 1985,
1986” and I also need the Court to follow the Law for Title 18 USC 3771.” (Id., at 50).
A. Rule 8
As explained in the December 16, 2015 Order Directing Plaintiff to File Amended
Complaint, the twin purposes of a pleading are to give the opposing parties fair notice of
the basis for the claims against them so that they may respond and to allow the Court to
conclude that the allegations, if proven, show that the plaintiff is entitled to relief. See
Monument Builders of Greater Kansas City, Inc. v. American Cemetery Ass’n of
Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989); see also Nasious v. Two Unknown
B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007) (stating that a complaint “must
explain what each defendant did to him or her; when the defendant did it; how the
defendant’s action harmed him or her; and, what specific legal right the plaintiff believes
the defendant violated.”).
The requirements of Rule 8 are designed to meet these purposes. See TV
Communications Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991),
aff’d, 964 F.2d 1022 (10th Cir. 1992). Specifically, Rule 8(a) provides that a complaint
“must contain (1) a short and plain statement of the grounds for the court’s jurisdiction, .
. . (2) a short and plain statement of the claim showing that the pleader is entitled to
relief; and (3) a demand for the relief sought.” Furthermore, the philosophy of Rule 8(a)
is reinforced by Rule 8(d)(1), which provides that “[e]ach allegation must be simple,
concise, and direct.” Taken together, Rules 8(a) and (d)(1) underscore the emphasis
placed on clarity and brevity by the federal pleading rules. As a result, prolix, vague, or
unintelligible pleadings violate the requirements of Rule 8.
Moreover, the general rule that pro se pleadings must be construed liberally has
limits and “the court cannot take on the responsibility of serving as the litigant’s attorney
in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005); see also United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs.”);
Ketchum v. Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991) (vague and conclusory
allegations that his rights have been violated does not entitle a pro se pleader to a day
in court regardless of how liberally the pleadings are construed), aff’d, 961 F.2d 916
(10th Cir. 1992). “[I]n analyzing the sufficiency of the plaintiff’s complaint, the court
need accept as true only the plaintiff’s well-pleaded factual contentions, not his
conclusory allegations.” Hall, 935 F.2d at 1110.
Despite the specific instructions provided by Magistrate Judge Gallagher in the
December 16 Order, Plaintiff has failed to file an Amended Complaint that complies with
Rule 8 of the Federal Rules of Civil Procedure as directed. Even construing Plaintiff’s
allegations liberally, the Amended Complaint does not provide a clear and concise
statement of the thirty claims Plaintiff is asserting against Defendants that demonstrate
he is entitled to relief in this action. As a result, Plaintiff fails to provide Defendants fair
notice of the specific claims being asserted against them and the specific factual
allegations that support each asserted claim.
Although the Amended Complaint fails to comply with Rule 8’s pleading
requirements, the Court discerns from Plaintiff’s allegations that he may be attempting
to assert claims for alleged violations of his constitutional rights pursuant to § 1983.
These claims, however, suffer from the same flaws as the original Complaint.
B. Eleventh Amendment Immunity
First, Plaintiff asserts claims against the State of Colorado, its agencies, and
state officers sued in their official capacities, including the Colorado Department of
Motor Vehicles, Governor John Hickenlooper, Colorado States Attorney General
Cynthia Coffman, Colorado Secretary of State Wayne W. Williams, Mesa County
District Attorney’s Office, Eagle County District Attorney’s Office, and Pueblo County
District Attorney’s Office (“the State Defendants”). See e.g., Mahan v. Huber, Civil
Action No. 09-cv-00098-PAB-BNB, 2010 WL 749807, at *5 (D. Colo. Mar. 2, 2010)
(Colorado Department of Motor Vehicles is a state agency protected by Eleventh
Amendment immunity); Romero v. Boulder County DA’s Office, 87 Fed. App’x 696, 698
(10th Cir. 2004) (“the district attorney is a state officer under Colorado law”). As such,
Plaintiff’s claims against the State Defendants are construed against the State of
Colorado. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Suits against state officials in
their official capacity therefore should be treated as suits against the State”).
Plaintiff was warned in the December 16 Order that the State, its agencies, and
state officers acting in their official capacities are entitled to Eleventh Amendment
immunity, absent a waiver. See generally Fent v. Okla. Water Res. Bd., 235 F3d 553,
559 (10th Cir. 2000) (Eleventh Amendment immunity constitutes a bar to the exercise of
federal subject matter jurisdiction); Meade v. Grubbs, 841 F.2d 1512, 1525 (10th Cir.
1988) (Eleventh Amendment immunity extends to the state, its instrumentalities, and its
officers in their official capacities). Moreover, Congress did not abrogate Eleventh
Amendment immunity through § 1983, see Quern v. Jordan, 440 U.S. 332, 345 (1979),
nor has the State expressly waived its sovereign immunity, see Griess v. Colorado, 841
F.2d 1042, 1044-45 (10th Cir. 1988). The Eleventh Amendment prohibits suit against
the State and its agencies, regardless of the relief sought. See Higganbotham v. Okla.
Transp. Com'n, 328 F.3d 638, 644 (10th Cir. 2003). A plaintiff, however, may request
prospective injunctive relief against a public official for actions taken pursuant to his
official duties. See Hunt v. Colorado Dep’t of Corrections, No. 07- 1400, 271 Fed. App’x
778, 780-81 (10th Cir. March 28, 2008) (recognizing that while the Eleventh
Amendment bars claims against state officers in their official capacities for money
damages and relief for prior acts, a plaintiff can seek prospective enforcement of his
Here, Plaintiff does not request prospective injunctive relief. Accordingly, Plaintiff
cannot obtain a money judgment or relief for past harms against the State, its agencies,
and state officers sued in their official capacities. Therefore, Plaintiff’s claims against
the State Defendants are barred by the Eleventh Amendment and must be dismissed.
C. Private Entities
Some of the named Defendants, including the American Bar Association and the
Colorado Bar Association, are not state actors. In order to establish a party’s liability for
an alleged violation of a civil right, a plaintiff must prove that the party is a state actor, or
that the conduct of the party is “fairly attributable to the State.” Pino v. Higgs, 75 F.3d
1461, 1465 (10th Cir. 1996) (“In order to hold a private individual liable under § 1983 for
a constitutional violation requiring state action, a plaintiff must show [ ] that the
individual’s conduct is ‘fairly attributable to the State.”); Blum v. Yaretsky, 457 U.S. 991,
1004 (1982) (“[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.”). 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, 436 U.S. 149, 164 (1978)).
Plaintiff was warned in the December 16 Order that the Complaint was deficient
because there were no allegations to suggest that any actions of the defendants who
are not state actors were fairly attributable to the State. The Court finds that the
Amended Complaint does not allege any facts to show that the American Bar
Association and Colorado Bar Association engaged in action that is “fairly attributable to
the State.” Therefore, the claims against the Defendants who are not state actors will
be dismissed as legally frivolous.
D. Personal Participation
The Amended Complaint also is deficient because Plaintiff fails to allege facts to
show that each named Defendant was personally involved in a deprivation of his
constitutional rights. Plaintiff was warned in the December 16 Order that personal
participation is an essential element in a civil rights action. See Bennett v. Passic, 545
F.2d 1260, 1262-63 (10th Cir. 1976); 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 Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (citations and quotations omitted); Dodds
v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir. 2010). A supervisor can only be
held liable for his or her own deliberate intentional acts. See Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009); Serna v. Colo. Dep’t of Corrections, 455 F.3d 1146, 1151 (10th Cir.
2006) (“Supervisors are only liable under § 1983 for their own culpable involvement in
the violation of a person's constitutional rights.”); see also Fogarty v. Gallegos, 523 F.3d
1147, 1162 (10th Cir. 2008) (“[Section] 1983 does not recognize a concept of strict
supervisor liability; the defendant’s role must be more than one of abstract authority
over individuals who actually committed a constitutional violation.”). Plaintiff’s vague
and conclusory allegations do not demonstrate that any of the named supervisory
Defendants personally participated in the asserted constitutional violations.
In addition, it is generally improper to hold a municipality liable under § 1983 for
the acts of its employees based on a theory of respondeat superior. See Monell v.
Dep’t of Soc. Servs. Of New York, 436 U.S. 658, 691-94 (1978). Rather, to hold a
municipality liable, a plaintiff must show (1) the existence of a municipal custom or
policy and (2) a direct causal link between the custom and policy and the violation
alleged. See Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 769-71
(10th Cir. 2013) (discussing Supreme Court standards for municipal liability). The
Amended Complaint contains no allegation of the existence of a municipal custom or
policy, or that the custom or policy was causally linked to the alleged violation of
constitutional rights. Thus, Plaintiff cannot maintain any claims against the municipality
defendants, i.e., Mesa County, City of Grand Junction, Eagle County, City of Eagle, City
of Golden, Jefferson County, Pueblo County, and City of Pueblo.
Furthermore, the Mesa County Sheriff, Grand Junction Police Department, Eagle
County Sheriff, Eagle County Jail, Jefferson County Sheriff, Jefferson County Jail,
Pueblo County Sheriff, and Pueblo County Jail are not separate suable entities under §
1983. See e.g., Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985). Thus, any
claims asserted against the county police departments, county sheriff departments, and
county jails are construed as claims asserted against the municipality itself, and Plaintiff
does not allege any municipal policy or custom that caused him injury.
Because Plaintiff’s fails to allege specific facts to show how each named
Defendant personally participated in an alleged deprivation of his constitutional rights,
the claims against the named Defendants will be dismissed as legally frivolous.
E. Judicial and Prosecutorial Immunity
The Amended Complaint also is deficient because Plaintiff names state court
judges and state prosecutors as Defendants, including the Mesa County Court (All of
the Judges and their Assistants), the Mesa County District Attorney’s Office (All of the
Officers and Assistants), the Eagle County District Attorney’s Office (All of the Officers
and Assistants), the Eagle County Courts (All of the Judges and their Assistants), the
Pueblo County Court (All of the Judges and their Assistants), and the Pueblo County
District Attorney’s Office (All of the Officers and Assistants).
Plaintiff was warned in the December 16 Order that judges are absolutely
immune from a civil rights suit based on actions taken in their judicial capacity, unless
they acted in the clear absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 1112 (1991); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); Hunt v. Bennett, 17 F.3d
1263, 1266-67 (10th Cir. 1994). Judicial immunity “is not overcome by allegations of
bad faith or malice,” Mireles, 502 U.S. at 11, or an assertion that the judge acted in error
or exceeded his authority, see Stump, 435 U.S. at 1105. Further, a judge acts in the
clear absence of all jurisdiction only when he “acts clearly without any colorable claim of
jurisdiction.” Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir.1990). Plaintiff does not
state any specific facts in the Amended Complaint to indicate that the unnamed
Defendant judges were acting outside of their judicial capacity.
In addition, state prosecutors are entitled to absolute immunity in § 1983 suits for
activities within the scope of their prosecutorial duties. See Imbler v. Pachtman, 424
U.S. 409, 420-24 (1976); see also Butz v. Economou, 438 U.S. 478, 504 (1978).
Initiating and pursuing a criminal prosecution are acts are “‘intimately associated with
the judicial process.’” Snell, 920 F.2d at 686 (quoting Imbler, 424 U.S. at 430).
Plaintiff’s allegations in the Amended Complaint suggest that he is suing the unnamed
prosecutor defendants for actions taken in the course of their prosecutorial duties. As
such, Plaintiff’s claims against the unnamed county court judges and state prosecutors
in the district attorney’s offices are barred by absolute immunity.
F. False Arrest and Imprisonment Claim
To the extent, Plaintiff attempts to assert a claim for false arrest or false
imprisonment, the claim fails. As explained in the December 16 Order, state tort law
provides the starting point for analyzing constitutional claims for wrongful arrest and
detention under § 1983; however, the ultimate inquiry is whether there has been a
deprivation of a constitutional right. Grubbs v. Bailes, 445 F.3d 1275, 1278 (10th Cir.
2006) (internal citations omitted). Under Colorado law, false arrest arises when an
individual is taken into custody by a police officer who claims but does not have
probable cause to believe that an offense has been committed and that the person who
was arrested committed it. See Enright v. Groves, 560 P.2d 851, 853 (Colo.App.1977)
(citing W. Prosser, Torts s 11 (4th ed.)).
Plaintiff does not allege that he was arrested and detained without probable
cause. Specifically, Plaintiff concedes that he was arrested on December 19, 2015 “on
a Failure to Appear Warrant.” (ECF No. 10, at 3). As such, Plaintiff was not imprisoned
without legal process to support a claim for false arrest or false imprisonment. See e.g.,
Wallace v. Kato, 549 U.S. 384, 389 (2007) (“Reflective of the fact that false
imprisonment consists of detention without legal process, a false imprisonment ends
once the victim becomes held pursuant to such process—when, for example, he is
bound over by a magistrate or arraigned on charges.”); Wilkins v. DeReyes, 528 F.3d
790, 799 (10th Cir. 2006) (the “issuance of an arrest warrant represents a classic
example of the institution of legal process.”). Therefore, Plaintiff’s false imprisonment or
false arrest claim will be dismissed as legally frivolous.
G. Malicious Prosecution Claim
To the extent Plaintiff attempts to assert a claim for malicious prosecution, the
claim also fails. As noted in the December 16 Order, a malicious prosecution claim
brought under the Fourth Amendment requires a showing that “(1) the defendant
caused the plaintiff's continued confinement or prosecution; (2) the original action
terminated in favor of the plaintiff; (3) no probable cause supported the original arrest,
continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the
plaintiff sustained damages.” Wilkins, 528 F.3d at 799. Malice may be inferred if a
defendant causes the prosecution without arguable probable cause. See id. at 800-01
(malice may be inferred from intentional or reckless behavior).
Most important, Plaintiff does not allege that the charge was ultimately
terminated in his favor, a necessary element of a § 1983 malicious prosecution claim.
See Wilkins, 528 F.3d at 799. Thus, the malicious prosecution claim will be dismissed
as legally frivolous.
For the reasons discussed above, it is
ORDERED that the claims in the Amended Complaint (ECF No. 10) are
DISMISSED pursuant to § 1915(e)(2)(B) as frivolous, malicious, or seeking monetary
relief against a defendant who is immune from such relief. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
DENIED for the purpose of appeal. 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 forma
pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24. It is
FURTHER ORDERED that all pending motions are DENIED as moot.
Dated February 8, 2016, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock_________________
LEWIS T. BABCOCK, Senior Judge
United States District Court
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