Robinson v. El Paso County Dept. of Human Services et al

Filing 5

ORDER TO AMEND by Magistrate Judge Gordon P. Gallagher on 2/25/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00404-GPG
COREY PATRICK ROBINSON,
Plaintiff,
v.
EL PASO COUNTY DEPT. OF HUMAN SERVICES,
COLORADO SPRINGS HOUSING AUTHORITY, and
BENNETTE VALLEY INVESTMENTS,
Defendants.

ORDER TO AMEND

I. Background
Plaintiff Corey Patrick Robinson currently resides in Colorado Springs, Colorado.
He initiated this action on February 18, 2016, by filing pro se a Complaint. In the
Complaint, Mr. Robinson asserts jurisdiction pursuant to “El Paso County DHS acts for
the State under color of law, CO Springs Housing Authority administers federal HUD
programs, Benette Valley Investments is a landlord under HUD rules.” (ECF No. 1, at
2). Mr. Robinson seeks money damages.
Mr. Robinson’s request to proceed in forma pauperis under 28 U.S.C. § 1915
was granted on February 25, 2016.
II. Statement of Claims
The Court must construe the Complaint liberally because Mr. Robinson 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. Mr. Robinson will be

directed to file an Amended Complaint for the reasons stated below.
In the Background section of the Complaint, Mr. Robinson states that he is a
“member of a HUD/Section 8 assisted housing unit,” and that he “engaged in civil rights
enforcement activity on behalf of [himself] and a member of [his] household. (ECF No.
1, at 2). He further contends that Defendants (1) illegally released his HIV status and
“other HIPPA protected information in an act of intimidation, retaliation and
discrimination” because he is a witness in federal and state investigations; (2)
“excluded” him from his job and housing on the basis of his disability; (3) provided false
information to law enforcement and allowed “maintenance staff and employees” to view
“a confidential housing file” with his “protected HIV and disability information;” and (4)
failed to protect him as a tenant in good standing. (Id.).
In the First Claim for Relief, Mr. Robinson asserts a claim against Defendants “El
Paso County DHS and CO DHS” for failing to “process my complaints leaving me on
the street, in shelter and forcing my disabled employer to pay for
motels/food/transportation costs for me.” (ECF No. 3, at 4). He also contends that
Defendant El Paso County DHS retaliated against him for filing discrimination
complaints by
(i) getting a court to “order me out of my home and off my job under false
pretenses;”
(ii) sending “an email out informing all parties and contracted agencies
associate [sic] with the case that I have AIDS and with false claims that I
was a danger to DHS contracted service providers and my employer’s
children based solely on my HIV status/disabilities;”
(iii) causing him to lose “the opportunity to get all of my normal hours of
employment because I could only work during the day due to the bus
schedule and my wages were decreased by the extra transportation
costs” and forcing him to use his disability money to pay for a hotel;
(iv) “illegally refus[ing] to process my request for food assistance;”
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(v) harassing his mother by informing her that he had AIDS;
(vi) “slander[ing] me and provid[ing] false information accusing me of
deliberately neglecting my client or abandoning her care;”
(vii) refusing to acknowledge “me as a valid collateral contact;” and
(viii) preventing “me from properly performing my job and taking care of
my client.”
(Id., at 4-6).
In the Second Claim for Relief, Mr. Robinson asserts a claim against Defendant
Bennette Valley Investments by failing to take “steps to enforce fair housing and
peaceful enjoyment rules” when neighbors started harassing him after the maintenance
man learned that Mr. Robinson had AIDS. (ECF No. 1, at 6). He f urther contends that
Defendant Bennette Valley Investments “continued to illegally accept Section 8 housing
payments and forced us to financially struggle in motel [sic] to survive” after the
apartment flooded. (Id., at 6-7). Mr. Robinson also alleges that Defendant Bennette
Valley Investments falsely reported that Mr. Robinson had abandoned his client, f ailed
to provide her with proper care, and acted “like a sexual and romantic partner to [his]
employer without any evidence to establish such a dangerous, libelous, and slanderous
assertion.” (Id., at 7). Mr. Robinson further alleges that Defendant Bennette Valley
Investments allowed individuals to access and release information in his confidential
HUD housing file. (Id.).
In the Third Claim for Relief, Mr. Robinson asserts a claim against Defendant
Colorado Springs Housing Authority for refusing him “the right to work as a live in aide
without cause forcing me to be homeless and on the streets for almost a year.” (ECF
No. 1, at 7). He also alleges that Defendant Colorado Springs Housing Authority
wrongfully released and publicized his HIV status and tried to get him fired in retaliation

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for filing a housing enforcement complaint. (Id.). Mr. Robinson finally contends that
Defendant Colorado Springs Housing Authority slandered him to the Colorado Civil
Rights Commission. (Id.).
III. Analysis
The Court will direct Mr. Robinson to file an Amended Complaint for failing to
comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure
because he fails to provide a short and plain statement of his claims showing that he is
entitled to relief and to assert proper jurisdiction for his claims.
The twin purposes of a complaint 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). T he requirements of Fed. R. Civ. P. 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).
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 statem ent of the claim
showing that the pleader is entitled to relief; and (3) a demand for the relief sought."
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.
Prolix, vague, or unintelligible pleadings violate Rule 8.
Claims must be presented clearly and concisely in a manageable format that
allows a court and a defendant to know what claims are being asserted and to be able
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to respond to those claims. New Home Appliance Ctr., Inc., v. Thompson, 250 F.2d
881, 883 (10th Cir. 1957). For the purposes of Rule 8(a), “[i]t is sufficient, and indeed
all that is permissible, if the complaint concisely states facts upon which relief can be
granted upon any legally sustainable basis.” Id.
A. Fed. R. Civ.P. 8
Based on the Court’s review of the Complaint, the Court finds that Mr. Robinson
fails to provide a short and plain statement of his claims in compliance with the pleading
requirements of Rule 8. Mr. Robinson’s claims are repetitive, not stated in a clear and
concise format, and for the most part are conclusory and vague. Furthermore, Mr.
Robinson does not assert any statutory basis for jurisdiction in this Court.
A decision to dismiss a complaint pursuant to Rule 8 is within the trial court’s
sound discretion. See Atkins v. Northwest Airlines, Inc., 967 F.2d 1197, 1203 (8th Cir.
1992); Gillibeau v. City of Richmond, 417 F.2d 426, 431 (9th Cir. 1969). The Court,
however, will give Mr. Robinson an opportunity to cure the deficiencies in the Complaint
by submitting an Amended Complaint that meets the requirements of Fed. R. Civ. P. 8
and complies with the following directives.
To the extent Mr. Robinson is attempting to assert a claim under 42. U.S.C. §
1983, he fails to identify a specific constitutional violation. Section 1983 “provides 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) (“[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). To state a constitutional deprivation pursuant to § 1983, Mr. Robinson must
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explain (1) what a defendant did to him; (2) when the defendant did it; (3) how the
defendant’s action harmed him; 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).
Mr. Robinson also is directed that he 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, Mr. Robinson
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).
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
mere knowledge of a subordinate’s wrongdoing. Id.; see also Fogarty v. Gallegos, 523
F.3d 1147, 1162 (10th Cir. 2008) (“[Section] 1983 does not recog nize 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 “arising 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 of ficial 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: “(1) the defendant promulgated, created, implemented or
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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.
Moreover, the State of Colorado and its entities are protected by Eleventh
Amendment immunity. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66
(1989); Meade v. Grubbs, 841 F.2d 1512, 1525-26 (10th Cir. 1988). “It is well
established that absent an unmistakable waiver by the state of its Eleventh Amendment
immunity, or an unmistakable abrogation of such immunity by Congress, the
amendment provides absolute immunity from suit in federal courts for states and their
agencies.” Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 588 (10th Cir.
1994), overrruled on other grounds by Ellis v. University of Kansas Med. Ctr., 163 F.3d
1186 (10th Cir. 1998). The State of Colorado has not waived its Eleventh Amendment
immunity, see Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988), and
congressional enactment of § 1983 did not abrogate Eleventh Amendment immunity,
see Quern v. Jordan, 440 U.S. 332, 340-345 (1979).
The Eleventh Amendment, however, does not bar a federal court action so long
as the plaintiff seeks in substance only prospective relief and not retrospective relief for
alleged violations of federal law, but a plaintiff must assert a claim for prospective relief
against individual state officers. Verizon Maryland v. Public Service Commission of
Maryland, 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 296 (1997)); Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007). Mr. Robinson,
however, seeks only money damages.
Finally, Mr. Robinson cannot state a claim based upon alleged violations of the
HIPPA protections because the Federal Health Insurance Portability and Accountability
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Act of 1996 (HIPPA) does not create a private right of action. See Thompson v. Larned
State Hosp., --- F. App’x —, *2 n.1 (10th Cir. Mar. 3, 2015) ) (citing Wilkerson v.
Shinseki, 606 F.3d 1256, 1267 n.4 (10th Cir. 2010) (not squarely addressed by the
Tenth Circuit but at least two sister circuits have determined HIPPA violations not
remedied in a § 1983 action and collecting cases noted that support this proposition).
Accordingly, it is
ORDERED that Mr. Robinson shall have thirty days from the date of this
Order to file an Amended Complaint on a proper Court-approved form as directed
above. It is
FURTHER ORDERED that if Mr. Robinson fails to comply within the time
allowed the Court will address the claims pursuant to the federal rules of civil procedure
and dismiss improper and insufficient claims accordingly.
DATED February 25, 2016, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
_________________________
United States Magistrate Judge

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