McCoy v. Colorado Department of Human Services et al

Filing 6

ORDER TO AMEND by Magistrate Judge Gordon P. Gallagher on 2/1/16. The Clerk shall send Plaintiff two copies of the Complaint form (mailed as ordered) (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00150-GPG

LEILA McCOY,
Plaintiff,
v.
CO DEPT OF HUMAN SERVICES, and
STATE OF COLORADO,
Defendants.

ORDER TO AMEND

Plaintiff Leila McCoy currently resides in Colorado Springs, Colorado. She
initiated this action by filing a Complaint on January 20, 2016. Plaintiff also submitted an
Application to Proceed in District Court Without Prepaying Fees or Costs, which has been
granted.
I must construe Plaintiff=s Complaint liberally because she 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 act as an advocate for a pro
se litigant. See Hall, 935 F.2d at 1110.
Plaintiff claims jurisdiction pursuant to 42 U.S.C. '' 1983 and 1985 and to the
Americans with Disabilities Act. In the Background section of the Complaint, Plaintiff
states that (1) on September 1, 2013, the El Paso County Department of Human Services
removed Plaintiff=s children and had her arrested; (2) the charges against her were later

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dropped and the court record was sealed; (3) she filed a complaint with the Aagency@
(apparently the Department of Human Services); and (4) a citizens review panel found the
agency had failed to provide an appropriate evaluation and reasonable accommodations,
discriminated against Plaintiff regarding services, and did not provide agency documents,
court filings, and publications in an accessible format. ECF No. 1 at 2. Plaintiff further
asserts that then she filed a civil rights complaint with the U.S. Department of Health and
Human Services, and in retaliation for filing the complaint, the sealed records, from
apparently Plaintiff=s criminal proceeding in El Paso County, Colorado, were placed in the
TRAILS 1 database. Id.
Plaintiff also asserts that she is blind, mobility impaired, and has several
documented chronic health conditions. Id. She further contends that the TRAILS
database is unconstitutional because employees who are not qualified to evaluate
disabilities place information in the database about Colorado citizens. Id. at 3. As a
result incorrect information is disseminated to other agencies, and individuals like
Plaintiff, who are blind and wheelchair bound, are denied access to educational and
housing services and employment. Id. Plaintiff further asserts that the ability to appeal
the information is only ten days, even if criminal charges exist, which denies an individual
their right to remain silent in a criminal proceeding. Id. at 3. Plaintiff further asserts that
the TRAILS database discriminates against individuals who practice polygamy and other
religious traditions in relation to marriage, family, and child rearing. Id. at 4. Plaintiff
requests that the TRAILS database be declared unconstitutional and that information
regarding a person=s disabilities, alternative lifestyles, or rape victim identity not be placed
1

TRAILS is a Statewide Automated Child Welfare Database the confirms cases of child
abuse or neglect.

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in the database unless a trained or licensed professional has conducted an evaluation
and an investigation and made a proper diagnosis. Id. at 6.
I will direct Plaintiff to file an Amended Complaint for the following reasons.
First, to state a constitutional deprivation pursuant to 42 U.S.C. ' 1983 Plaintiff
must explain (1) what a defendant did to her; (2) when the defendant did it; (3) how the
defendant=s action harmed her; and (4) what specific legal right the defendant violated.
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). In
other words, Plaintiff must state
Plaintiff also is directed that she must assert personal participation by a named
defendant in the alleged constitutional violation. See Bennett v. Passic, 545 F.2d 1260,
1262-63 (10th Cir. 1976). To establish personal participation, Plaintiff must show how
each named individual 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).
Further, 42 U.S.C. ' 1983 Aprovides 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)
(A[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.@) (emphasis added). Any defendant that Plaintiff asserts violated
her constitutional rights must be acting under color of state law.
Supervisors can only be held liable for their own misconduct. See Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009). A supervisor cannot incur liability under ' 1983 for his
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mere knowledge of a subordinate=s wrongdoing. Id.; see also Fogarty v. Gallegos, 523
F.3d 1147, 1162 (10th Cir. 2008) (A[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.@). Furthermore,
when a plaintiff sues an official under Bivens or ' 1983 for
conduct Aarising 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.
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: A(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.
To the extent Plaintiff relies on 42 U.S.C. ' 1985, her claims are not supported by
facts. Plaintiff's allegations do not support a claim under § 1985(1) (preventing officer
from performing duties) or § 1985(2) (obstructing justice, intimidating party, witness, or
juror). Plaintiff, however, may be attempting to assert a claim under § 1985(3), which
creates a cause of action against persons who conspire to deprive a person or class of
persons equal protection or privileges. See Bisbee v. Bey, 39 F.3d 1096, 1102 (10th Cir.
1994). But to state a claim under § 1985(3), a plaintiff must allege four elements: (1) a
conspiracy; (2) for the purpose of depriving, directly or indirectly, any person or class of
persons of equal protection of the laws, or of equal privileges and immunities under the

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laws; (3) the conspirators committed some act in furtherance of the conspiracy; and (4)
the plaintiff was either injured in her person or property or was deprived of having and
exercising any right or privilege of a citizen of the United States. See Griffin v.
Breckenridge, 403 U.S. 88, 103–04 (1971). Plaintiff fails to allege the four elements.
Second, Title II of the ADA provides that A[n]o qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
discrimination by such entity.@ 42 U.S.C. ' 12132. The Act defines a Apublic entity@ as
any State or local government, department, agency, special purpose district, or other
instrumentality of a State or States or local government; and the National Railroad
Passenger Corporation, and any commuter authority. 42 U.S.C. ' 12131(1) (emphasis
added). See Robertson v. Las Animas Cnty. Sheriff's Dep=t, 500 F.3d 1185, 1193 (10th
Cir. 2007). Plaintiff has named the Colorado Department of Human Services and the
State of Colorado as defendants, who are properly named parties in an ADA claim.
Nonetheless, to state a claim under Title II, a plaintiff must allege that A(1) [s]he is a
qualified individual with a disability, (2) who was excluded from participation in or denied
the benefits of a public entity=s services, programs, or activities, and (3) such exclusion,
denial of benefits, or discrimination was by reason of a disability.@ Robertson v. Las
Animas Cnty Sheriff=s Dep=t , 500 F.3d 1185, 1193 (10th Cir. 2007). Plaintiff does not
state what public entity=s services, programs, or activities she was denied based on her
disabilities.
I will address the Letter that Plaintiff also submitted along with her Complaint on
January 20, 2016. In the Letter, Plaintiff states that she does not Aconsent for [her] case

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to be heard before the Magistrate . . . . and request the court have [her] case heard and
reviewed by an impartial judge.@ ECF No. 4.
Consideration for disqualifying magistrate judges is regulated by 28 U.S.C.
' 455(a). Section 455(a) states that A[a]ny justice, judge, or magistrate of the United
States shall disqualify himself in any proceeding in which his impartiality might reasonably
be questioned.@ The general purpose of ' 455(a) is Ato promote public confidence in the
integrity of the judicial process@ and to avoid even the Aappearance of impropriety.@
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988).
A judge is to recuse himself when Aa party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the judge before whom the matter is
pending has a personal bias or prejudice either against him, or in favor of any adverse
party.@ 28 U.S.C. ' 144. Further, under 28 U.S.C. ' 455(a), a judge Ashall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.@
In the Letter Plaintiff filed on January 20, 2016, she failed to file a sufficient affidavit
stating that the “Magistrate” who previously heard her cases had a personal bias or
prejudice against her. Plaintiff=s Letter states that (1) the magistrate denied her
reasonable accommodations; (2) refused her counsel; (3) identified her communications
as frivolous; (4) mocked her claims; (5) discriminated against her based on her
disabilities; (6) presented arguments on behalf of respondents; (7) confused her with
another plaintiff in an order; (8) attacked her character; (9) told her to complete forms that
were not accessible to her because she is blind; (10) buried her in legal language and
citations knowing the citations are not available to her; (11) stated the Colorado
Department of Human Services and its subsidiary agencies have Ajudicial immunity;@

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and (11) attacked her personally when she attempted to reopen a case because court
orders had been sent to the wrong address.
Plaintiff=s request that this case be assigned to an Aimpartial judge@ who is other
than the magistrate judge that presided over her previous cases, which I have determined
are the cases she filed in 2015, is insufficient for the following reasons. The eleven
reasons given by Plaintiff for seeking an assignment to a different magistrate judge are
vague and conclusory. Plaintiff does not identify the specific incidents that would
support her general allegations. Furthermore, even if she had identified specific factual
allegations, the eleven reasons are vague challenges to Magistrate Judge Gallagher’s
rulings in her previous cases. A[J]udicial rulings alone almost never constitute a valid
basis for a bias or partiality motion.@ Liteky v. United States, 510 U.S. 540, 555 (1994).
I do not discern any nonconclusory allegation in Plaintiff=s Letter that would call into
question the impartiality of this Judge. A judge has a strong obligation not to recuse
when there is no legitimate reason to recuse. Nichols v. Alley, 71 F.3d 347, 351 (10th
Cir. 1995). Plaintiff=s allegations, therefore, fail to establish that I have any personal bias
or prejudice against her, and I will not recuse myself from this case.
Accordingly, it is
ORDERED that Plaintiff shall have thirty days from the date of this Order to file
an Amended Complaint as directed above. It is
FURTHER ORDERED that the Clerk of the Court is to send to Plaintiff two copies
of the Court-approved Complaint form to be used in filing an Amended Complaint.
Plaintiff only needs to submit one form to the Court when filing the Amended
Complaint. It is

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FURTHER ORDERED that if Plaintiff fails to comply within the time allowed the
action will be subject to dismissal without further notice.
DATED February 1, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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