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Carter v. Herold

United States District Court, D. Colorado

September 25, 2014

JOSEPH SCOTT CARTER, Plaintiff,
v.
KATHRYN ANN HEROLD, Attorney #40075, and 20TH JUDICIAL DISTRICT COURTS OF BOULDER, CO, Defendants.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

BOYD N. BOLAND, Magistrate Judge.

Plaintiff, Joseph Scott Carter, is a prisoner in the custody of the Colorado Department of Corrections at the San Carlos Correctional Facility in Pueblo, Colorado. He submitted pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983 and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3). He was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

The Court must construe the Prisoner Complaint liberally because Mr. Carter 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, Mr. Carter will be ordered to file an amended Prisoner Complaint if he wishes to pursue his claims in this action.

Mr. Carter appears to be challenging his state court conviction by challenging his state competency proceedings. He is suing his public defender and the state court in which he was convicted. He asks for money damages, habeas corpus relief, and injunctive relief.

Mr. Carter's claims challenging the validity of his current incarceration are barred by the rule in Heck v. Humphrey , 512 U.S. 477 (1994). In Heck , the Supreme Court held that if a judgment for damages favorable to a prisoner in a § 1983 action necessarily would imply the invalidity of his or her criminal conviction or sentence, the § 1983 action does not arise until the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by an authorized state tribunal, or called into question by the issuance of a federal habeas writ. See Heck , 512 U.S. at 486-87.

In addition, a civil rights action filed by a state prisoner "is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) - if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson v. Dotson , 544 U.S. 74, 81-82 (2005). Mr. Carter does not allege that he has invalidated any convictions or sentences that pertain to his current confinement and its duration.

To the extent Mr. Carter may seek to challenge his criminal conviction or obtain his release from incarceration, his sole federal remedy is a writ of habeas corpus, after he has exhausted state court remedies. See Preiser v. Rodriguez , 411 U.S. 475, 504 (1973). The Court will not consider the merits of any habeas corpus claims in this civil rights action.

If no final judgment has been entered in the state-court action, this Court still must abstain from exercising jurisdiction over claims asking the Court to intervene in ongoing state proceedings pursuant to Younger v. Harris , 401 U.S. 37, 44 (1971).

Mr. Carter may not sue his public defender. Defense attorneys, whether court-appointed or privately retained, performing in the traditional role of attorney for the defendant in a criminal proceeding are not deemed to act under color of state law; such attorneys represent their client only, not the state, and cannot be sued in a § 1983 action. See Polk County v. Dodson , 454 U.S. 312, 325 (1981); Hunt v. Bennett , 17 F.3d 1263, 1268 (10th Cir. 1994).

Mr. Carter also may not sue the 20th Judicial District Courts of Boulder, Colorado, because it is protected by Eleventh Amendment immunity. See Steadfast Ins. Co. v. Agricultural Ins. Co. , 507 F.3d 1250, 1252-53 (10th Cir. 2007) (noting that the Eleventh Amendment protects states and state entities regardless of whether a plaintiff seeks declaratory or injunctive relief or monetary damages).

The amended Prisoner Complaint Mr. Carter will be directed to file must comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. The twin purposes of a complaint are to give the opposing parties fair notice of the basis for the claims against them so that they may respond and to allow the court to conclude that the allegations, if proven, show that the plaintiff is entitled to relief. See Monument Builders of Greater Kansas City, Inc. v. American Cemetery Ass'n of Kansas , 891 F.2d 1473, 1480 (10th Cir. 1989). The requirements of Fed.R.Civ.P. 8 are designed to meet these purposes. See TV Communications Network, Inc. v. ESPN, Inc. , 767 F.Supp. 1062, 1069 (D. Colo. 1991), aff'd , 964 F.2d 1022 (10th Cir. 1992). Specifically, Rule 8(a) provides that a complaint "must contain (1) a short and plain statement of the grounds for the court's jurisdiction, ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought." The philosophy of Rule 8(a) is reinforced by Rule 8(d)(1), which provides that "[e]ach allegation must be simple, concise, and direct." Taken together, Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity by the federal pleading rules. Prolix, vague, or unintelligible pleadings violate Rule 8.

In order to state a claim in federal court, Mr. Carter "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). The general rule that pro se pleadings must be construed liberally has limits and "the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record." Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005).

Section 1983 "provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights." Conn v. Gabbert , 526 U.S. 286, 290 (1999); see also Wyatt v. Cole , 504 U.S. 158, 161 (1992) ("[T]he purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails."). Therefore, Mr. Carter should name as defendants in his amended complaint only those persons that he contends actually violated his federal constitutional rights.

Personal participation is an essential allegation in a civil rights action. See Bennett v. Passic , 545 F.2d 1260, 1262-63 (10th Cir. 1976). To establish personal participation, Mr. Carter must show that each defendant caused the deprivation of a federal right. See 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). Supervisory officials may not be held liable for the ...


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