United States District Court, D. Colorado
EDWARD D. ROBBINS, Plaintiff,
COUNTY OF BOULDER, CITY OF BOULDER, CITY AND COUNTY OF DENVER, STAN GARNETT, JOE PELLE, BRUCE HAAS, MEGHAN RING, KAREN FUKUTAKI, NELISSA MILFIELD, TYRONE SANDOVAL, ED TORRES, JEFFREY GOETZ, COUNTY/STATE PUBLIC ENTITY #1, JOHN/JANE DOE#1, JOHN/JANE DOE#2, JOHN/JANE DOE#3, JOHN/JANE DOE#4, JOHN/JANE DOE#5, JOHN/JANE DOE#6, JOHN/JANE DOE#7, JOHN/JANE DOE#8, JOHN/JANE DOE#9, Defendants.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Edward D. Robbins, was incarcerated at the jail of the Boulder County Sheriff's Office when he initiated this action by filing pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983 for money damages. Subsequently, he informed the Court that he has been transferred to the Park County Jail in Fairplay, Colorado. He has paid the $400.00 filing fee.
On April 11, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 14) directing Mr. Robbins to file an amended Prisoner Complaint that complied with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, sued the proper parties, asserted the personal participation of each named defendant, and refrained from challenging his state court convictions pursuant to Heck v. Humphrey, 512 U.S. 477 (1994).
On May 23, 2014, Mr. Robbins filed an amended Prisoner Complaint (ECF No. 11). He asks for money damages and mandamus relief characterized as injunctive relief, i.e., for this Court to order the State of Colorado, which is not a named defendant, to amend statutes governing competency proceedings and adopt procedural safeguards "that protect accused persons from violations to their constitutional rights." ECF No. 11 at 32. He also asks the Court to order the Boulder County Sheriff's Office to discontinue its sealed legal mail policy and offer him a status that does not include eighteen to twenty hours a day of lockdown and allows him the "basic, minimum, civilized measures of life's necessities." ECF No. 11 at 33.
The Court must construe the amended Prisoner Complaint liberally because Mr. Robbins 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. Merely making vague and conclusory allegations that his federal constitutional rights have been violated does not entitle a pro se pleader to a day in court, regardless of how liberally the court construes such pleadings. See Ketchum v. Cruz, 775 F.Supp. 1399, 1403 (D. Colo. 1991), aff'd, 961 F.2d 916 (10th Cir. 1992). "[I]n analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations." Hall, 935 F.2d at 1110. A court may disregard conclusory allegations, which are not entitled to a presumption of truthfulness. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); Meek v. Jordan, 534 F.Appx. 762, 764 (10th Cir. 2013).
Pursuant to 28 U.S.C. § 1915A, the Court must review a Prisoner Complaint when a prisoner is seeking redress from officers or employees of a governmental entity and dismiss the complaint, or any portion of the complaint, that is frivolous. 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, 324 (1989).
Mr. Robbins' ability to file a civil action or appeal in federal court in forma pauperis pursuant to 28 U.S.C. § 1915 may be barred if he has three or more actions or appeals in any federal court that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). Under § 1915(g), the Court may count dismissals entered prior to the enactment of this statute. Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996). For the reasons stated below, the amended Prisoner Complaint will be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915A.
Mr. Robbins asserts eleven claims with subclaims. Claim five is comprised entirely of subclaims. Most of the asserted claims are vague and conclusory because Mr. Robbins fails to make supporting factual assertions.
For example, in his first claim, Mr. Robbins makes the vague and conclusory allegation that he was falsely arrested and imprisoned on June 25, 2011, by two unnamed City of Boulder police officers on charges of third-degree assault and violations of protection and bond orders and asserts all charges were dismissed at trial on December 5, 2012. He also makes the vague and conclusory allegation that the police chief of the Boulder Police Department, John/Jane Doe #3, is responsible in a supervisory capacity for "promulgating and maintaining unconstitutional policies" and failing to train Boulder police officers "to obtain adequate probable cause before arresting or imprisoning a person." ECF No. 11 at 10.
Mr. Robbins fails to clarify whether he bases his assertions of false arrest and imprisonment on the contention that the officers lacked probable cause or that the charges against him were dismissed or both. In any event, as Mr. Robbins was informed in the order of April 11, 2014, for an amended Prisoner Complaint, he "must explain what each defendant did to him or her; when the defendant did it; how the defendant's action harmed him or her; and, what specific legal right the plaintiff believes the defendant violated." Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Simply because the charges against Mr. Robbins were dismissed at trial does not mean the arrest by the two Boulder police officers was false or that he was falsely imprisoned. In addition, as Mr. Robbins also was informed in the April 11 order, he may not hold the Boulder police chief, John/Jane Doe #3, liable for the unconstitutional conduct of his or her subordinates on a theory of respondeat superior. See Ashcroft, 556 U.S. at 676. To sue the unnamed Boulder police chief under § 1983 for conduct "arising from his or her superintendent responsibilities, " Mr. Robbins must plausibly plead and eventually prove not only that the official's subordinates violated the Constitution, but that the official by virtue of his own conduct and state of mind did so as well. See Dodds v. Richardson, 614 F.3d 1185, 1198 (10th Cir. 2010) (quoting Iqbal, 556 U.S. at 677). Mr. Robbins has failed to do so. Claim one will be dismissed as legally frivolous pursuant to § 1915A(b)(1).
In claim two, Mr. Robbins alleges he was falsely arrested and imprisoned and subjected to excessive force by an unnamed Denver police officer, identified as John/Jane Doe #4, in another arrest on charges of third-degree assault, disturbing the peace, and threats to persons or property occurring on September 16, 2011. He further alleges he declined to answer the officer's questions, was put in restraints, placed in a police car, and taken to a police station for one to two hours before being taken to the Denver jail. He fails to allege the disposition of the charges or argue any facts that indicate he was falsely arrested and imprisoned. He complains that, while at the police substation, he was handcuffed on one arm for an hour, anchored to a cement bench in a cell room with a sink and toilet, and in order to use the toilet he had to lean off the bench to one side. Finally, he makes the vague and conclusory allegation that the police chief of the Denver Police Department, John/Jane Doe #5, is responsible in a supervisory capacity for "promulgating and maintaining unconstitutional policies, " causing his "wrongful arrest and imprisonment and injury by excessive force, " ECF No. 11 at 12, and for failing to train Denver police officers "to find adequate probable cause before arresting or imprisoning a person." Id.
Mr. Robbins fails to explain how the defendants' actions harmed him. See Nasious, 492 F.3d at 1163. Simply because he was arrested, placed in restraints, temporarily held at a police station, left in a cell room for one hour handcuffed to a cement bench with awkward access to a toilet, and booked on criminal charges does not mean the arrest by the two Boulder police officers was false, his imprisonment was false, or he was subjected to force, excessive or otherwise.
Although Mr. Robbins claims he experienced "injury by excessive force, " ECF No. 11 at 12, there are no well-pled facts that demonstrate which, if any, incident Mr. Robbins thinks caused the alleged excessive force or the manner in which Mr. Jones was handcuffed, other than to point out his access to a toilet in the Denver jail required him to lean to one side off the bench to which he was handcuffed, or any actual injury that Plaintiff attributes to being handcuffed. In short, Mr. Robbins fails to allege sufficient, or any, facts to state a plausible claim of an excessive force violation. Without supporting facts, Mr. Robbins' excessive force claim rests on nothing more than conclusory allegations. Ashcroft, 556 U.S. at 681.
In addition, as Mr. Robbins also was informed in the April 11 order for an amended Prisoner Complaint, he may not hold the Denver police chief, John/Jane Doe #5, liable for the unconstitutional conduct of his or her subordinates on a theory of respondeat superior. See id., 556 U.S. at 676. To sue the unnamed Denver police chief under § 1983 for conduct "arising from his or her superintendent responsibilities, " Mr. Robbins must plausibly plead and eventually prove not only that the official's subordinates violated the Constitution, but that the official by virtue of his own conduct and state of mind did so as well. See Dodds, ...