Harris v. Adams County Sheriffs Department et al

Filing 4

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/24/16. 3 Application to Proceed in District Court Without Prepaying Fees or Costs is granted. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00413-GPG
MARQUISE DEMONT HARRIS,
Plaintiff,
v.
ADAMS COUNTY SHERIFF’S DEPARTMENT, sued in official and individual capacity,
SHERIFF MICHAEL MICINTOSH, sued in official and individual capacity,
DEPUTY SHERIFF JOHN DOE, sued in official and individual capacity,
S. FULLER, sued in official and individual capacity, and
JOHN DOE, sued in official and individual capacity,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Marquise Demont Harris, has filed pro se a Complaint (ECF No. 1)
asserting claims that arose during his confinement at the Adams County Detention
Facility in Brighton, Colorado. Mr. Harris also has filed an Application to Proceed in
District Court Without Prepaying Fees or Costs (Long Form) (ECF No. 3). The
Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form) will
be granted.
Pursuant to § 1915(e)(2)(B)(i), the Court must dismiss the action if the claims Mr.
Harris asserts are frivolous or malicious. 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). For the reasons stated below, the Court will dismiss the action as legally
frivolous and malicious.

The Court must construe the Complaint liberally because Mr. Harris 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 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. Harris claims he was prevented from exercising his religious rights while he
was confined at the Adams County Detention Facility from June 19, 2015, through July
18, 2015. He asserts a number of constitutional and state law claims premised on the
same factual allegations that he was denied his Holy Quran upon arriving at the jail, he
was unable to fast during Ramadan because meals were served at inappropriate times,
and he was denied the opportunity to participate in prayer meetings. Mr. Harris asserts
the same claims in another pending civil action. See Harris v. Adams County Sheriff’s
Dept., No. 16-cv-00160-REB-MEH (D. Colo. filed Jan. 21, 2016). With the exception of
one unidentified John Doe, the Defendants in this action are the same Defendants in case
number 16-cv-00160-REB-MEH.
“Repetitious litigation of virtually identical causes of action may be dismissed
under § 1915 as frivolous or malicious.” McWilliams v. Colorado, 121 F.3d 573, 574 (10th
Cir. 1997) (quotation marks and alteration omitted). To determine whether a pleading
repeats pending or previously litigated claims, the Court may consult its own records.
2

See Duhart v. Carlson, 469 F.2d 471, 473 (10th Cir. 1972). The Court has consulted its
records and finds that the claims Mr. Harris asserts in the instant action are identical to the
claims he is pursuing in case number 16-cv-00160-REB-MEH. Therefore, the instant
action is repetitive and will be dismissed as frivolous and malicious.
The Court also 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 Application to Proceed in District Court Without Prepaying
Fees or Costs (Long Form) (ECF No. 3) is granted. It is
FURTHER ORDERED that the Complaint and the action are dismissed as legally
frivolous and malicious pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). 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

24TH day of

February

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
3

, 2016.