Marner v. Lokshina

ZACHARY MARNER, Plaintiff, v. ANNA LOKSHINA, Probation Officer, ET AL., Defendants.

Civil Action No. 15-cv-0991-LTB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

August 13, 2015

ORDER OF DISMISSAL

Plaintiff Zachary Marner resides in Wheat Ridge, Colorado. On May 11, 2015, he initiated this action by filing, pro se, a one-hundred plus page long civil rights complaint against various state and county entities and individuals. On June 5 and June 9, 2015, he filed amended complaints (ECF Nos. 8 & 9) against various entities and individuals. The Court granted leave to proceed pursuant to 28 U.S.C. § 1915 on June 12, 2015 (ECF No. 12). On June 15, 2015, this Court issued a six-page Order directing Plaintiff to file an Amended Complaint (ECF No. 14). That Order provided specific guidance on the deficiencies in the Amended Complaint. On July 15, 2015, Mr. Marner filed another Amended Complaint (ECF No. 17) against twenty-two various governmental employees concerning allegations that encompass the time period from 2007 through 2015. Mr. Marner further has added his two minor children as Plaintiffs and seeks monetary damages. Plaintiff asserts seven claims in his Complaint: Claim One-First Amendment violations; Claim Two-Fourth Amendment violations; Claim Three-Sixth Amendment violations concerning his criminal conviction; Claim Four-Fourteenth Amendment violations; Claim Five-Violations of the Fair Credit Reporting Act; Claim Six-Defamation of Character; and Claim Seven-Conspiracy to deprive Plaintiff of his constitutional rights.

A. Applicable Legal Principles

Pertinent to the case at bar is the authority granted to federal courts for sua sponte screening and dismissal of certain claims. In this regard, Title 28 of the United States Code, section 1915, establishes the criteria for allowing an action to proceed in forma pauperis (IFP), i.e., without prepayment of costs. Section 1915(e) (as amended) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

In addition, Congress enacted a new statutory provision at 28 U.S.C. § 1915A, entitled "Screening," which requires the court to review complaints filed by prisoners seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). If the complaint is "frivolous, malicious, or fails to state a claim upon which relief can be granted," or "seeks monetary relief from a defendant who is immune from such relief," the court must dismiss the complaint. 28 U.S.C. § 1915A(b).

Plaintiff has been granted leave to proceed IFP in this action (ECF No. 12). Moreover, his Complaint asserts claims against officers and employees of governmental agencies. Thus, his Complaint must be reviewed under the authority set forth above.

In reviewing complaints under these statutory provisions, a viable complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The question to be resolved is: whether, taking the factual allegations of the complaint, which are not contradicted by the exhibits and matters of which judicial notice may be had, and taking all reasonable inferences to be drawn from thoseuncontradicted factual allegations of the complaint, are the "factual allegations ... enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true even if doubtful in fact[.]" Bell Atlantic Corp., 550 U.S. at 555.

The Tenth Circuit Court of Appeals has held "that plausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible." Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10^th Cir. 2012) (internal citations and quotations omitted). The Circuit court has further noted that the nature and specificity of the allegations required to state a plausible claim will vary based on context. Id. The Court thus concluded that the applicable standard is "a wide middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do." Id.

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). See also Conkleton v. Raemisch, 603 F. App'x 713 (10^thCir. 2015); Ross v. Romero, 191 F. App'x 682 (10^th Cir. 2006) (affirming district court's sua sponte dismissal of civil rights complaint under 28 U.S.C. § 1915(b)).

The Court must construe the pleadings liberally because Plaintiff is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10^th Cir. 1991). If a complaint reasonably can be read "to state a valid claim on which the plaintiff could prevail, [a 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, a court should notact as a pro se litigant's advocate. See id. Sua sponte dismissal is proper when it is patently obvious that plaintiff could not prevail on the facts alleged and allowing him an opportunity to amend his complaint would be futile. Curley v. Perry, 246 F.3d 1278, 1281-82 (10^th Cir. 2001) (internal quotations omitted).

For the reasons stated below, the Complaint and the action will be dismissed pursuant to the screening authority set forth above. The pertinent grounds which will result in the dismissal are addressed below.

B. Liability under 42 U.S.C. § 1983

With the exception of his Fifth Claim, Plaintiff seeks to assert liability against Defendants pursuant to 42 U.S.C. § 1983. To state a claim under 42 U.S.C. § 1983, a plaintiff must meet two threshold requirements. He must allege: 1) that the alleged misconduct was committed by a person acting under color of state law; and 2) that as a result, he was deprived of rights, privileges, or immunities secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986). In addressing a claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 393-394 (1989) (internal quotations and citations omitted). The validity of the claim then must be judged by reference to the specific constitutional standard which governs that right. Id. The elements necessary to establish a § 1983 vary with the constitutional provision at issue. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (internal citations omitted). But common to all § 1983 claims is the requirement that liability be predicated on a violation traceable to a defendant-official's "own individual actions." Id. See also Mitchell v. Maynard, 80 F.3d 1433, 1441 (10^th Cir. 1996) (noting that "personal participation is an essential allegation in a § 1983 claim"); Brush v. Burgess, 177 F. App'x 805,807 (10^th Cir. 2006) (concluding that a sheriff's supervisory responsibility for a jail is insufficient to establish deliberate indifference absent personal participation).

As relevant here, government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Board of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 403 (1997). Personal involvement, however, does not mean direct participation is necessary. A government official can be held liable in a § 1983 suit for a constitutional violation under a theory of supervisory liability but only if the plaintiff shows: 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. Dodds v. Richardson, 614 F.3d 1185, 1199 (10^th Cir. 2010).

Here, Plaintiff has included among the Defendants Governor John Hickenlooper, Police Chiefs Terry Jones, Daniel Oates and Robert White, Mayor Michael Hancock, Penny May, the Director of Human Services, and Attorney General Cynthia Coffman. He fails, however, to allege any personal participation by any of these individuals. Nor does he provide any bases upon which to assert supervisory liability against any of these individuals. Accordingly, his claims against them will be dismissed.

Moreover, even if a viable constitutional claim exists, a number of legal doctrines may preclude recovery for those violations, including statutes of limitations, immunity, preclusion, etc. These doctrines are discussed below.

C. Statute of Limitations

Plaintiff initiated this action on May 11, 2015. The applicable statute of limitations for a § 1983 claim in Colorado is two years. See Blake v. Dickason, 997 F.2d 749, 750-51 (10^th Cir. 1993). Cf. Nicholas v. Boyd, 317 F. App'x 773, 777 (10^th Cir. 2009) (holding that, in Colorado,the applicable statute of limitations for § 1983 actions, even those asserted against enforcement officers, is the two-year limitation period of § 13-80-102(1)...