United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND TO ASSIGN CASE
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Madina Buhendwa, resides in Boulder, Colorado. She initiated this action by filing pro se a Complaint for damages pursuant to 42 U.S.C. § 1983, 42 U.S.C. § 1981, and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d.
On March 13, 2014, Magistrate Judge Boyd N. Boland reviewed the Complaint and determined that it was deficient because it failed to comply with the requirements of Rule 8 of the Federal Rules of Civil Procedure and failed to allege the personal participation of each Defendant in an arguable deprivation of Plaintiff's constitutional or statutory rights. Magistrate Judge Boland directed Plaintiff to file an amended complaint within thirty days of the March 13, 2014 Order. Ms. Buhendwa filed an Amended Complaint on April 14, 2014, naming several new Defendants. (ECF No. 9).
Ms. Buhendwa has been granted leave to proceed pursuant to 28 U.S.C. § 1915 with payment of an initial partial filing fee. Subsection (e)(2)(B) of § 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 must construe liberally the Amended Complaint because Ms. Buhendwa 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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, this action will be dismissed, in part.
Ms. Buhendwa is African American, was born in Zaire,  and is a student at the University of Colorado, Boulder ("C.U."). Plaintiff alleges that since 1991, Defendant Regional Transportation District (RTD) has contracted with C.U. to provide bus passes to C.U. students at a substantially reduced fare. Although her allegations are somewhat difficult to ascertain, Plaintiff apparently contends that RTD has revoked or denied her student bus pass for racially-motivated reasons, thereby interfering with her right to benefits under the RTD-C.U. contract.
Ms. Buhendwa also alleges in the Amended Complaint that Defendant Stadler, an attorney for RTD, and Defendant Schmitz, a physician, lied to the state court in a previous legal proceeding involving the Plaintiff and RTD. In addition, Ms. Buhendwa complains about an incident that occurred on July 1, 2010, when she fell on the bus because of the driver's alleged negligence. Plaintiff filed a lawsuit in federal district court asserting various constitutional and federal statutory claims based on RTD's failure to pay for her medical care necessitated by injuries she suffered as a result of the July 1, 2010 accident - Buhendwa v. Regional Transportation District, Civil Action No. 12-cv-01711-PAB-CBS. Plaintiff also alleges that Defendant Unknown Driver lied about the July 1, 2010 accident at the time it occurred and that Benjamin Norman, an RTD supervisor, lied and used racially derogatory language in a May 2012 written report "regarding the accident."
The Court discerns from the Amended Complaint that Plaintiff is asserting the following claims for relief against Defendants: racially-motivated interference with Plaintiff's third-party beneficiary right to a reduced fare bus pass under the contractual relationship between RTD and C.U., on the basis of Plaintiff's race, in violation of 42 U.S.C. § 1981; discrimination on the basis of race, in violation of the Fourteenth Amendment Equal Protection Clause, and a violation of Plaintiff's due process rights, under 42 U.S.C. § 1983; race discrimination in violation of Title VI of the 1963 Civil Rights Act, 42 U.S.C. § 2000d; and, a state law claim for tortious interference with contract.
A. Official Capacity Claims
Ms. Buhendwa asserts constitutional and federal statutory claims against Defendants Stadler, Schmitz, the Unknown Bus Driver, Benjamin Norman, and the 15 individual members of the RTD Board of Directors in their official capacities. To the extent these Defendants are employees or agents of RTD, the federal claims are construed as claims asserted against RTD. See Hafer v. Melo, 502 U.S. 21, 25 (1991).
The Amended Complaint can be construed liberally to also assert claims against Defendants Stadler, Schmitz, the Unknown Bus Driver, Benjamin Norman, and the 15 individual members of the RTD Board of Directors in their individual capacities. The personal capacity claims are without merit, for the reasons discussed, infra.
B. Claims under 42 U.S.C. § 1983
The Court first addresses Ms. Buhendwa's contention that Defendants Stadler and Schmitz violated her Fourteenth Amendment due process and equal protection rights when they allegedly lied and made derogatory comments about Plaintiff to the state court in conjunction with an unspecified state court case she filed. The same claims and factual allegations were addressed by District Judge Brimmer in an order dismissing Case No. 12-cv-01711-PAB-CBS (ECF No. 18; Order dated 3/22/13, at 4-7), and will not be revisited here. See Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir. 1993) (A duplicative suit may be dismissed for reasons of "wise judicial administration.") (quoting Ridge Gold Standard Liquors v. Joseph E. Seagram, 572 F.Supp. 1210, 1213 (N.D. Ill. 1983), and citing Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976)); see also Curtis v. Citibank, N.A., 226 F.3d 133, 138 (2d Cir. 2000) (district court may dismiss a suit that is duplicative of another federal court suit); accord Williams v. Madden, Case No. 00-1130, 2001 WL 661086 at *1 and n.1 (10th Cir. June 13, 2001) (stating that the court has the authority to dismiss "repetitious litigation reasserting virtually identical causes of action").
With regard to Defendant Norman, an RTD supervisor, and the Unknown Driver (who apparently was driving the RTD bus on July 1, 2010, when Plaintiff was injured), Ms. Buhendwa does not allege any specific facts to show that those individuals are state actors or that they otherwise deprived Plaintiff of a constitutional right. To state a claim under 42 U.S.C. § 1983, plaintiff must allege that she was deprived of a right "secured by the Constitution or laws" of the United States and that this deprivation was committed under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Ms. Buhendwa was warned by Magistrate Judge Boland in the March 13 Order that liability under § 1983 must be premised on specific factual allegations showing that the Defendant was personally involved in a violation of the Plaintiff's constitutional rights. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976); 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). ...