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McDonald v. State, Department of Justice

United States District Court, D. Colorado

April 16, 2014

R. KIRK McDONALD, Plaintiff,
v.
STATE OF COLORADO DEPARTMENT OF JUSTICE, Defendant.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Plaintiff, R. Kirk McDonald, has filed pro se a Complaint (ECF No. 8). The Court must construe the Complaint liberally because Mr. McDonald 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 act as an advocate for a pro se litigant. See id.

The instant action relates to state court proceedings Mr. McDonald alleges are ongoing. According to Mr. McDonald, he filed two lawsuits in 2009 in Colorado district courts, one against Zions First National Bank and the other against Vectra Bank Colorado, for allegedly engaging in a mortgage fraud scheme that caused him financial losses. The Complaint includes verbose and repetitive allegations of misconduct by the banks although Mr. McDonald is not suing the banks in this action. The only Defendant in this action is identified as the State of Colorado Department of Justice, purportedly a state agency responsible for erroneous orders entered in the state court actions Mr. McDonald has filed. The following paragraph in the Complaint[1] summarizes the claims Mr. McDonald is asserting:

Simply, both of McDonald's civil actions, the state of Colorado Justice System has a lack of control of its district-courts and their sitting judges, allowing civil actions to never conclude, allowing judges to literally to do what ever they want, as long as they want, in defiance of direct orders of their superior courts; and clearly outside the precepts of Stump. McDonald has been damaged by the State of Colorado and its lack of oversight of its own judicial executives. When their judicial executives misbehave there is no recourse, although rules on the books for contravention of Colorado's Judicial Canon's exist providing recourse for lack of statutory compliance with C.R.S. § 13-5-135.

(ECF No. 8 at 15, ¶33.)

Mr. McDonald specifically asserts four claims for relief in the Complaint alleging that his constitutional rights have been violated. The claims are asserted pursuant to 42 U.S.C. §§ 1983, 1985, and 1986.

Mr. McDonald first claims that his Sixth Amendment rights to self-representation and a speedy trial have been violated because the State of Colorado has prevented him from defending himself by not allowing him to proceed pro se. According to Mr. McDonald,

[t]he state-court refused to provide a written order providing McDonald the ability to defend himself. Upon refusal to allow McDonald to proceed as pro se, the state-court then denied McDonald the ability to cross-file for summary judgment, and granted summary judgment to Zions, and undoubtedly prevented McDonald from providing any defense trier of fact to the events in the case and controversy.

(ECF No. 8 at 15, ¶37.)

Mr. McDonald contends in his second claim that his rights to procedural and substantive due process and equal protection have been violated as follows:

41. Procedurally, the state-court has refused to obey its superior court, the Colorado Court of Appeals, in excess of three (3) years. The state-district-court simply refusing to obey, and in contempt of the appellate court has refused to hold the state-court in contempt, and therefore has essentially approved the state-courts right to prevent McDonald from the relief sought in a court of equity. Additionally, the state-court although order no entry of judgment has allowed Zions to depose McDonald no less than four times under the masquerade that a judgment has issued; Zions actions simply harassment and persecution.
42. Substantively, the state-court has allowed Zions to breach McDonald's right to privacy. Zions with the state-court's approval has allowed contractors of Zions to trespass McDonald gated residence and spy upon McDonald taking photographs and invading his right to privacy, further, slandering McDonald to his neighbors stating they were sent by the court to investigate McDonald, his home, holdings and papers therein.
43. McDonald protections under the equal protection clause have been eviscerated; McDonald damaged by Zions for the loss of his entire retirement account is now indigent, as such, McDonald is a member of the protected class for economic reasons. A retired individual whom has been defrauded by another national bank, McDonald has a civil right to defend his claims for relief in state-court. The state-court discriminated against McDonald because of his economic class. McDonald unable to have paid counsel to defend his rights in court, the state ...

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