Sardakowski v. Doe

Filing 11

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 4/11/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00232-GPG
JAMES SARDAKOWSKI,
Plaintiff,
v.
MARK IVANDICK, In his Official Capacity,
RANDY CHAPMAN, In his Official Capacity,
JOHN DOE, In his Official Capacity, and
DISABILITY LAW COLORADO,
Defendants.
ORDER OF DISMISSAL

On January 28, 2016, Plaintiff James Sardakowski initiated this action by filing a
Prisoner Complaint pursuant to 28 U.S.C. § 1343, 42 U.S.C. § 1983,and 42 U.S.C.
§ 10801, et seq. and a Prisoner=s Motion and Affidavit for Leave to Proceed Pursuant to
28 U.S.C. ' 1915. Magistrate Judge Gordon P. Gallagher granted Plaintiff leave to
proceed pursuant to ' 1915 on February 1, 2016.
On the same day, Magistrate Judge Gallagher also directed Plaintiff to file an
Amended Complaint that complies with Fed. R. Civ. P. 8, asserts personal participation
by properly named defendants, and states what a defendant did to him, when he did it,
how he was harmed, and what specific legal right the defendant violated. Plaintiff further
was instructed that a defendant is not liable for his or her subordinates= unconstitutional
conduct based on a theory of respondeat superior. He also was instructed that he may
name John/Jane Doe as a party but must provide sufficient information about the
individual for the purpose of service. Magistrate Judge Gallagher directed Plaintiff to

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amend the Complaint within thirty days; he warned Plaintiff that if he failed to comply with
the February 1 Order the Complaint and action would be dismissed without further notice.
On March 2, 2016, Plaintiff requested a thirty-day extension of time to amend,
which was granted. Plaintiff then filed a notice of change of address and a request that
the Court send him a list of the cases he has filed with this Court, because he has an
amended complaint due. The Clerk of the Court was directed to send a copy of the
original complaint filed in this case to Plaintiff that contains a list of Plaintiff’s cases in this
court. Subsequently, Plaintiff filed an Amended Complaint on April 4, 2016.
The Court must construe the 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 act as an
advocate for pro se litigants. See Hall, 935 F.2d at 1110.
Subsection (e)(2)(B) of 28 U.S.C. ' 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, 324 (1989).
The Court will dismiss this action as legally frivolous, for the reasons stated below.
In the Amended Complaint, Plaintiff asserts jurisdiction only pursuant to 42 U.S.C.
' 10801(b)(1), et seq. He claims that Defendants are funded by federal statute to
investigate claims of abuse of the mentally ill. Plaintiff further asserts that Defendants
refuse to follow the statutory requirements and to investigate his abuse. In particular,
Plaintiff claims that he was deemed incompetent to stand trial for almost two years and
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had to wait months for each evaluation to be conducted. Plaintiff also contends that
during the time he was held he was severely abused by the officers and medical staff at
the county jail. Finally, Plaintiff asserts that his right to a fair and speedy trial was denied
and his guilty plea coerced. Plaintiff seeks an investigation of the alleged abuses and
compensation for the cost of filing this action.
A federal statute must confer Aspecific, individually enforceable rights@ upon the
person seeking enforcement and evidence an intent to create a private right for these
rights to be enforced through a cause of action under ' 1983. See generally Gonzaga
Univ. v. Doe, 536 U.S. 273, 279B85 (2002). Where a statute provides an administrative
enforcement mechanism, the presumption is that no private cause of action is intended.
Karahalios v. National Federation of Federal Employees, Local 1263, 489 U.S. 527, 533
(1989); Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 19B20
(1979).
Plaintiff cites the Protection and Advocacy for Individuals with Mental Illness Act
(APAIMI Act@), 42 U.S.C. '' 10801B10851 as the basis for jurisdiction for his claims. As
held by numerous courts, however, the PAIMI Act authorizes certain protection and
advocacy systems to bring suit regarding access to patient records; its provisions do not
provide a private cause of action to an individual such as Plaintiff. See id. ''
10805(a)(1)(B), (C), 10807; see, e.g., Ind. Prot. & Advocacy Servs. v. Ind. Family & Social
Servs. Admin., 603 F.3d 365, 374B82 (7th Cir. 2010); Burke v. N.D. Dep't. of Corr. &
Rehab., No. 1:07BcvB004, 2007 WL 1456217, at *8 (D. N.D. 2007).
Even if the Court were to consider Plaintiff’s claims pursuant to 42 U.S.C. § 1983,
as he identified § 1983 as the basis for jurisdiction in his original Complaint, along with §

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10801, et seq., Plaintiff has failed to comply with the February 1, 2016 Order to Amend
and assert personal participation by named defendants.
Nonetheless, because Plaintiff does not assert jurisdiction pursuant to 42 U.S.C.
§ 1983 in the Amended Complaint, the Court will dismiss this action pursuant to 28 U.S.C.
' 1915(e)(2)(B)(i) as legally frivolous.
The Court also certifies pursuant to 28 U.S.C. ' 1915(a)(3) that any appeal from
this Order is not taken in good faith, and, therefore, in forma pauperis status is denied for
the purpose of appeal. 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 Tenth Circuit within thirty days in accordance with Fed.
R. App. P. 24. Accordingly, it is
ORDERED that the action is dismissed with prejudice pursuant to 28 U.S.C.
' 1915(e)(2)(B)(i) as legally frivolous. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

11th

day of

April

, 2016.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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