Harris v. Gallagher

Filing 8

ORDER of Dismissal. ORDERED that the Complaint (ECF No. 1) and the action are dismissed with prejudice. IFP on appeal is denied, by Judge Lewis T. Babcock on 11/16/2015. (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02417-LTB
LAWRENCE HARRIS,
Plaintiff,
v.
GORDON P. GALLAGHER, Judge
Defendant.

ORDER OF DISMISSAL

Plaintiff Lawrence Harris resides in Minneapolis, MN. On October 13, 2015, he
filed a pro se complaint against the Honorable Gordon P. Gallgher, United States
Magistrate Judge. Plaintiff has been granted leave to proceed without prepayment of
fees and costs pursuant to 28 U.S.C. § 1915 (ECF No. 6).
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).
Plaintiff has been granted leave to proceed IFP in this action (ECF No. 6). Thus,

his Complaint must be reviewed under the authority set forth above.
In reviewing complaints under this statutory provision, 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 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 ‘[t]he 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
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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, Civil
No. No. 14–1271, 603 F. App’x 713 (10th Cir. 2015); Ross v. Romero, 191 Fed. 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 Complaint 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 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.
B. Plaintiff’s Allegations and Relevant Procedural History
On November 21, 2014, Plaintiff filed pro se a Complaint for money damages in
this Court at Civil Action No. 14-3153. The Court reviewed the Complaint and
determined it was deficient.
Therefore, on November 21, 2014, Magistrate Judge Gordon P. Gallagher
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entered an order (ECF No. 3) directing Mr. Harris to cure a deficiency, i.e., either pay
the $400.00 filing fee or submit an Application to Proceed in District Court Without
Prepaying Fees or Costs, and to file an amended Prisoner Complaint within thirty days if
he wished to pursue his claims. In that action, Mr. Harris was suing an unnamed
federal court judge, apparently because he disagreed with the order of dismissal
entered in Harris v. Tulsa 66ers, No. 14-cv-02765-LTB (D. Colo. Oct. 16, 2014), which
dismissed the action without prejudice for improper venue. The Court informed Plaintiff
that he could not obtain relief against any judicial officer who presided over his
lawsuits because he disagrees with their decisions because Judges are entitled to
absolute immunity from liability for actions taken in their judicial capacity, unless they
acted in the clear absence of all jurisdiction.
The November 21, 2014 Order directed Mr. Harris to obtain the Court-approved
forms for filing an Application to Proceed in District Court Without Prepaying Fees or
Costs and a Complaint, along with the applicable instructions, from the Office of the
Clerk or at www.cod.uscourts.gov, and to use those forms in curing the designated
deficiency and filing an amended Complaint that sued the proper parties, complied with
the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, and
asserted each Defendant’s personal participation in the alleged constitutional violations.
The November 21, 2014 Order warned Mr. Harris that if he failed to cure the designated
deficiency or file an amended Prisoner Complaint as directed within thirty days, the
action would be dismissed without further notice.
On December 18, 2014, Mr. Harris submitted an amended Complaint that was
not on the Court-approved form he was directed to use in the November 21, 2014
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Order. Moreover, he failed to submit an Application to Proceed in District Court Without
Prepaying Fees or Costs.
Local Rules 1.2 and 5.1(c) of the Local Rules of Practice - Civil for this Court
require litigants to use the Court-approved forms found on the Court’s website. Rule
83(a)(2) of the Federal Rules of Civil Procedure allows a district court to enforce a local
rule imposing a form requirement unless it “causes a party to lose any right because of
a nonwillful failure to comply.” Fed. R. Civ. P. 83(a)(2). Mr. Harris made no mention of
being unable to obtain the Court-approved forms for filing a Complaint or an Application
to Proceed in District Court Without Prepaying Fees or Costs, nor did he ask the Court
to mail him the forms because he was unable to obtain them. Generally, “dismissal is
an appropriate disposition against a party who disregards court orders and fails to
proceed as required by court rules.” United States ex rel. Jimenez v. Health Net, Inc.,
400 F.3d 853, 855 (10th Cir. 2005).
In addition, the United States Court of Appeals for the Tenth Circuit repeatedly
has upheld the requirement that pro se litigants comply with local court rules requiring
use of proper Court-approved forms, and rejected constitutional challenges to such
rules. See Georgacarakos v. Watts, 368 F. App'x 917, 918-19 (10th Cir. 2010) (district
court did not abuse its discretion in dismissing civil rights action without prejudice for
federal prisoner's noncompliance with local rules requiring use of proper court-approved
form to file complaint and district court's order to comply), Durham v. Lappin, 346 F.
App'x 330, 332-33 (10th Cir. 2009) (it was within district court's discretion to dismiss
prisoner's complaint for failure to comply with local rules requiring pro se litigants to use
court-approved forms, and local rule did not violate prisoner's equal protection rights);
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Kosterow v. United States Marshal's Serv., 345 F. App'x 321, 322-33 (10th Cir. 2009) (it
was within district court's discretion to dismiss complaint for failure to use proper court
form); Young v. United States, 316 F. App'x 764, 769-71 (10th Cir. 2009) (district court
order dismissing federal prisoner's pro se civil rights complaint without prejudice to his
ability to refile, based on his repeated refusal to comply with district court order directing
him to file amended complaint on court-approved prisoner complaint form as required
by local district court rule, was not abuse of discretion or constitutional violation); Maunz
v. Denver Dist. Court, 160 F. App'x 719, 720-21 (10th Cir. 2005) (district court did not
abuse its discretion in dismissing inmate's federal action where inmate failed to file
habeas corpus application on proper form designated by district court); Daily v.
Municipality of Adams County, 117 F. App'x 669, 671-72 (10th Cir. 2004) (inmate's
failure to comply with local rule requiring pro se prisoners to use court's forms to file
action was not nonwillful, and inmate's failure to use required form supported dismissal
of action).
Therefore, on January 5, 2015, the amended Complaint and the action were
dismissed. The Order of Dismissal and Judgment Order were sent to Plaintiff at his
address of record in Denver, Colorado. On March 2, 2015, the Order of Dismissal and
Judgment Order were returned to the Court as undeliverable.
In this action, Plaintiff again seeks to impose liability against a judicial officer
because he disagrees with the dismissal of his action in Civil No. 14-3153. Specifically,
he complains that Magistrate Judge Gallagher committed fraud by requiring him to pay
the required filing fee or file a motion to proceed in forma pauperis and by requiring him
to use the court-approved forms.
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As previously explained to Plaintiff, a judge is absolutely immune from § 1983
liability except when the judge acts "in the clear absence of all jurisdiction." Stump v.
Sparkman, 435 U.S. 349, 356–57 (1978) (articulating broad immunity rule that a "judge
will not be deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority...."). Under Sparkman, the question is
whether the judge performed a "judicial" act or acted "in the clear absence of
jurisdiction" by looking to "the nature of the act itself, i.e., whether it is a function
normally performed by a judge, and to the expectations of the parties, i.e., whether they
dealt with the judge in his judicial capacity." Id. at 362, 98 S.Ct. at 1107. Because
Plaintiff alleges that Judge Gallagher engaged in unconstitutional conduct while
presiding over his previous civil action, the judge was performing judicial acts and was
clothed with absolute judicial immunity.
Given the well-established principle of absolute judicial immunity, and Plaintiff’s
failure to allege that Judge Gallagher acted in the clear absence of his jurisdiction, this
action will 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 Mr. Harris files a notice of appeal he also must pay the
full $505.00 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 Complaint (ECF No. 1) and the action are dismissed with
prejudice. It is
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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 16th day of

November

, 2015.

BY THE COURT:

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

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