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Harper v. Office of Attorney Regulation

United States District Court, D. Colorado

November 7, 2014

DAVID A. HARPER, Plaintiff,
v.
THE OFFICE OF ATTORNEY REGULATION, ADAM J. ESPINOZA, in his individual and/or personal capacity, JOHN S. GLEASON, in his individual and/or personal capacity, JAMES C. COYLE, in his individual or personal capacity, WILLIAM R. LUCERO, in his individual and/or personal capacity, THE OFFICE OF THE PRESIDING DISCIPLINARY JUDGE, THE COLORADO SUPREME COURT, THE FLORIDA BAR, THE FLORIDA SUPREME COURT, and DOES 1 THROUGH 20, whose true names are unknown, Defendants.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Plaintiff, David A. Harper, filed pro se a Complaint (ECF No. 8) alleging that Defendants violated his constitutional rights when they "instigated and participated in unlawful disciplinary actions" against Plaintiff that resulted in his suspension from the practice of law in Florida and Colorado. All of the Defendants in this case either are state agencies or entities and their employees, or the judge who presided over Plaintiff's attorney disciplinary proceedings. Espinoza, Gleason, and Coyle are counsel for the Colorado Supreme Court Office of Attorney Regulation Counsel and Judge Lucero was the presiding disciplinary judge in Plaintiff's disciplinary proceedings in Colorado. In short, Plaintiff alleges that:

Defendants acted individually and in concert to purposely manipulate, misrepresent, misapply and circumvent the law, to falsify official documents and to use fraudulent and falsified documents in the Colorado proceedings and to deprive Plaintiff of his rights under the U.S. Constitution, federal law, Colorado law, and Florida law, including but not limited to his rights to procedural and substantive due process and appellate review, for the wrongful and unlawful purpose of supporting unlawful and fraudulent orders from Florida and unlawfully and without authority imposed reciprocal discipline, costs, fines, and the unlawful requirement of reinstatement against Plaintiff in violation of law and Plaintiff's civil rights in Colorado and under the U.S. Constitution based on such orders.

(ECF No. 8 at 5, ¶ 6.)

Based on the allegations, Plaintiff asserts claims for violations of due process and equal protection pursuant to 42 U.S.C. § 1983; civil conspiracy pursuant to 42 U.S.C. § 1985; obstruction of justice pursuant to 18 U.S.C. §§ 1512, 1513; violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, et seq.; and state law claims for fraud and intentional infliction of emotional distress. He seeks compensatory and punitive damages.

On September 24, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 10) directing Plaintiff to show cause why the claims against Defendants Colorado Supreme Court, Office of the Presiding Disciplinary Judge, and Office of Attorney Regulation should not be dismissed for lack of jurisdiction; the claims against Defendants Lucero, Espinoza, Gleason, and Coyle should not be dismissed based on absolute immunity; and the claims against Defendants Florida Bar and Florida Supreme Court should not be dismissed for improper venue. On October 24, 2014, Plaintiff submitted his Response (ECF No. 11).

The Court must construe Plaintiff's Complaint and filings liberally because Plaintiff 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 act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

Plaintiff has been granted leave to proceed pursuant to 28 U.S.C. § 1915. Pursuant to § 1915(e)(2)(B), the Court must dismiss the action if the claims Plaintiff is asserting are frivolous, malicious, or seek monetary relief against a defendant who is immune from such relief. In addition, pursuant to Fed.R.Civ.P. 12(h)(3), the Court must dismiss an action if the Court lacks subject matter jurisdiction. The issue of subject matter jurisdiction may be raised sua sponte by the Court at any time during the course of the proceedings. See McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir. 1988). "The party seeking to invoke the jurisdiction of a federal court must demonstrate that the case is within the court's jurisdiction." United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994).

I. The Colorado Supreme Court, Office of the Presiding Disciplinary Judge, and Office of Attorney Regulation Counsel.

The Court lacks subject matter jurisdiction over the claims against the Colorado Supreme Court, Office of the Presiding Disciplinary Judge, and Office of Attorney Regulation Counsel (OARC) because the Eleventh Amendment prevents Plaintiff from suing a state court or judicial department for damages in federal court. See Blatchford v. Native Village of Noatak & Circle Village, 501 U.S. 775, 785-86 (1991); see also Will v. Michigan Dep't of State Police, 491 U.S. 58, 66, 70-71 (1989) (holding that "Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties.") The Office of the Presiding Disciplinary Judge and OARC are established by the Colorado Supreme Court and, accordingly, the Tenth Circuit has affirmed dismissal of claims for damages against disciplinary boards as barred by the Eleventh Amendment. See Guttman v. Widman, 188 Fed.Appx. 691, 696 (10th Cir. 2006); Post v. Supreme Court of Colorado, 53 Fed.Appx. 891 (10th Cir. 2002); see also Ysais v. New Mexico Judicial Standard Comm'n, 616 F.Supp.2d 1176, 1191-1192 (D.N.M. 2009) (holding that disciplinary board was entitled to Eleventh Amendment immunity).

"It is well established that absent an unmistakable waiver by the state of its Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by Congress, the amendment provides absolute immunity from suit in federal courts for states and their agencies." Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994). The State of Colorado has not waived its Eleventh Amendment immunity. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988) (per curiam). Furthermore, congressional enactment of 42 U.S.C. § 1983 did not abrogate Eleventh Amendment immunity. See Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1195-96 (10th Cir. 1998).

In his Response, Plaintiff argues that these defendants are not protected by the Eleventh Amendment because "no interpretation of the United States Constitution, its amendments, federal law or state law would allow a state, its agencies or its employees to knowingly railroad' an innocent citizen of a state and a citizen of the United States in a reciprocal discipline case through the use of a fabricated and fraudulent order and false evidence obtained from another state." (ECF No. 11 at 2.) He further asserts that the "Eleventh Amendment does not control or apply in this case as the unlawful imposition of reciprocal discipline against Plaintiff by Defendants The Colorado Supreme Court, the Office of Presiding Disciplinary Judge and The Office of Attorney Regulation Counsel, through their employees, is both a state action and a deprivation of Plaintiff's liberty and property under color of law and without due process." ( Id. at 11.) He also contends that the Eleventh Amendment "does not apply to suits brought by citizens against their own state." ( Id. ) Plaintiff also argues that Eleventh Amendment immunity does not apply because the Fourteenth Amendment, "clearly entitles Plaintiff, as a citizen of a state and of the United States, to bring his case, which arises under the Constitution and the laws of the United States, against a State and its agents..." ( Id. ) Plaintiff further contends that the Complaint has been filed pursuant to "federal question jurisdiction (28 U.S.C. § 1331) and 42 U.S.C. §§ 1983, 1981... including the Fourteenth Amendment." ( Id. at 12.) Finally, Plaintiff argues that Monell v. Dept' of Social Services, 436 U.S. 658 (1978) provides jurisdiction over his claims because Monell holds that a municipality and its officials can be held liable under § 1983. ( Id. at 13.)

The Court rejects all these arguments. Plaintiff has not, with his allegations in the Complaint or his arguments in the Response, pled around Eleventh Amendment immunity or come within any exception to its jurisdictional bar. Therefore, the claims against the Colorado Supreme Court, the Office of the Presiding Disciplinary Judge, and OARC are ...


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