Thelen v. Chambers et al

Filing 9

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/23/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02722-GPG
MICHEL PAUL THELEN,
Plaintiff,
v.
CAROL CHAMBERS, in her official capacity as former elected District Attorney of the 18th
Judicial District of Colorado and in her individual capacity,
JAMES N. BARTKUS, in his official capacity as appointed Deputy District Attorney 18th
Judicial District Attorney for Lincoln County, Colorado, and in his individual
capacity, and
TRUSTON L. FISHER, in his official capacity as appointed County Judge for Lincoln,
County, Colorado, and in his individual capacity,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Michel Paul Thelen, has filed pro se a Prisoner Complaint (ECF No. 1).
Mr. Thelen asserts four claims for relief pursuant to 42 U.S.C. § 1983 contending his
rights under the United States Constitution have been violated. He seeks damages as
well as unspecified declaratory and injunctive relief.
The Court must construe the Prisoner Complaint liberally because Mr. Thelen 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). If the Prisoner 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. Thelen has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Therefore, the Court must dismiss the action if Mr. Thelen’s claims are
frivolous or malicious or seek damages from defendants who are immune from such
relief. See 28 U.S.C. § 1915(e)(2)(B)(i) & (iii). 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). The Court will dismiss the action pursuant to § 1915(e)(2)(B)(i) & (iii).
Mr. Thelen’s claims in the Prisoner Complaint arise out of proceedings in one or
more criminal prosecutions in Colorado’s Eighteenth Judicial District. According to Mr.
Thelen:
The continued reckless, knowing, intentional, willful
and w[a]nton abuse of process by the trusted officials, as
Lincoln County Court judge, 18th judicial Sr. Deputy District
Attorney in Lincoln County and Supervised by elected 18th
Judicial District Attorney, []under the color of law and as
individuals, have been ongoing for years. I personally and
with my Attorney on other cases have argued the Abuse of
Process and unlawful § 18-1-1001, C.R.S.[,] as far back in my
own records as 2008. The Defendants are not entitled to
immunity due to the continued behavior displayed by a
County Judge Truston L. Fisher, who has presided for 28 yrs
and a Sr. Deputy District Attorney James N. Bartkus, with +25
yrs. Practicing still continuing in such behaviors without
professional, legal, or intelligent reason when other
alternative courses could be taken to reach the same
objective.
(ECF No. 1 at 5-6.) The named Defendants are District Judge Truston L. Fisher, former
District Attorney Carol Chambers, and Deputy District Attorney James N. Bartkus.
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The Court first will address Mr. Thelen’s request for unspecified declaratory and
injunctive relief. A “plaintiff cannot maintain a declaratory or injunctive action unless he
or she can demonstrate a good chance of being likewise injured in the future.” Facio v.
Jones, 929 F.2d 541, 544 (10th Cir. 1991). Mr. Thelen fails to allege facts that
demonstrate a good chance he will face the same or similar injuries as those alleged in
the complaint. As a result, he fails to demonstrate that entry of declaratory or injunctive
relief will have any effect on Defendants’ behavior towards him. See Green v. Branson,
108 F.3d 1296, 1300 (10th Cir. 1997). Thus, the claims for declaratory and injunctive
relief are legally frivolous and must be dismissed.
Mr. Thelen’s claims for damages also must be dismissed. To the extent the
claims for damages implicate the validity of a conviction or sentence, the claims are
barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). Pursuant to Heck, if a
judgment necessarily would imply the invalidity of a criminal conviction or sentence, the
action does not arise until the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by an authorized state tribunal, or called
into question by the issuance of a federal habeas writ. See Heck, 512 U.S. at 486-87.
In short, a civil rights action “is barred (absent prior invalidation) B no matter the relief
sought (damages or equitable relief), no matter the target of the prisoner’s suit (state
conduct leading to conviction or internal prison proceedings) B if success in that action
would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v.
Dotson, 544 U.S. 74, 81-82 (2005).
Furthermore, even if Mr. Thelen’s claims for damages do not implicate the validity

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of a conviction or sentence and are not barred by Heck, the claims still must be dismissed.
First, Mr. Thelen fails to allege facts that would allow him to recover damages from
Defendants in their official capacities. Official capacity suits “generally represent only
another way of pleading an action against an entity of which an officer is an agent.”
Monell v. Department of Social Services, 436 U.S. 658, 690 n.55 (1978). Therefore, Mr.
Thelen’s official capacity claims against Defendants, a state court judge and two state
prosecutors, must be construed as claims against the State of Colorado. However, a
claim for damages against the State of Colorado is barred by the Eleventh Amendment.
See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66 (1989); see also Duncan v.
Gunter, 15 F.3d 989, 991 (10th Cir. 1994) (“Neither states nor state officers sued in their
official capacities are ‘persons’ subject to suit under section 1983.”). Therefore, Mr.
Thelen’s official capacity claims lack merit.
To the extent Mr. Thelen is asserting claims for damages against Defendants in
their individual capacities, the claims are barred by absolute immunity. Judges are
absolutely immune from liability in civil rights suits for money 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 U.S. 349,
356-57 (1978); Hunt v. Bennett, 17 F.3d 1263, 1266-67 (10th Cir. 1994). Similarly, “acts
undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial,
and which occur in the course of his [or her] role as an advocate for the State, are entitled
to the protections of absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273
(1993). Mr. Thelen fails to allege facts that demonstrate any Defendant was acting

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outside the scope of his or her absolute immunity. Therefore, Defendants are entitled to
absolute immunity in their individual capacities.
The action will be dismissed for the reasons stated in this order. 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 Prisoner Complaint and the action are dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B)(i) and (iii). 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.
DATED at Denver, Colorado, this

23rd

day of

February

, 2016.

BY THE COURT:

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

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