United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Robin Myers, resides in Aurora, Colorado. Ms. Myers initiated this action by filing pro se a Complaint (ECF No. 1).
On November 6, 2014, Magistrate Judge Boyd N. Boland reviewed the Complaint and determined that it was deficient for several reasons, which were explained to Ms. Myers. Magistrate Judge Boland ordered Ms. Myers to file an Amended Complaint within 30 days that corrected the deficiencies of her original Complaint and that complied with Fed.R.Civ.P. 8. (ECF No. 4). Plaintiff filed an Amended Complaint on November 25, 2014. (ECF No. 6).
Plaintiff has been granted leave to proceed pursuant to the federal in forma pauperis statute, 28 U.S.C. § 1915 (2013). Subsection (e)(2)(B) of § 1915 requires a court to dismiss sua sponte an action at any time if the action is frivolous 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 Ms. Myers' Amended Complaint liberally because she 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.
I. The Amended Complaint
In the Amended Complaint, Ms. Myers alleges that she "was falsely accused and overrated as having a mental condition from the State of Colorado and placed under a high level security investigation with Halliburton." (ECF No. 6, at 2). Plaintiff further states that the investigation "included excessive heart monitors, biological abuse, and sciatic shocks, " and that she was placed under psychiatric observation. ( Id. ). Ms. Myers then alleges that "[a] viral video has been circulated showing medical issues caused by their abuses" which has defamed her. ( Id. at 2, 3). Plaintiff asserts that she has been terminated from employment, labeled unemployable, placed on sabbaticals and has faced many health challenges by "this governmental[l]y imposed burden that has significantly altered my status along with deprived me of my civil liberties to work, live, [and] fellowship." ( Id. at 3). She seeks monetary relief against each of the Defendants.
Ms. Myers does not set forth an appropriate jurisdictional basis for her claims in the Amended Complaint. To the extent she asserts that the Defendants violated various federal criminal statutes, her claims are not actionable in this civil proceeding. See, e.g., Newcomb v. Ingle, 827 F.2d 675, 676 n.1 (10th Cir.1987) (recognizing that 18 U.S.C. § 241 is a criminal statute which does not provide for a private civil cause of action); see also Winslow v. Romer, 759 F.Supp. 670, 673 (D. Colo. 1991) ("Private citizens generally have no standing to institute federal criminal proceedings.").
In addition, Plaintiff makes scattershot references to federal civil statutes that do not afford her a private cause of action. See, e.g., 29 U.S.C. § 653 (Occupational Safety and Health Act); 42 U.S.C. § 1101 (establishing a federal Employment Security Administration Account).
Construing the Amended Complaint liberally, the Court finds that Ms. Myers is asserting a § 1983 cause of action for governmental defamation.
A. Eleventh Amendment immunity
Ms. Myers cannot maintain a § 1983 claim against Defendant State of Colorado. Magistrate Judge Boland Warned Ms. Myers in the November 6 Order that the State of Colorado is an improper party to a § 1983 action. States enjoy Eleventh Amendment immunity from liability under § 1983, regardless of the relief sought. Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252-53 (10th Cir. 2007); Higganbotham v. Okla. Transp. Comm'n, 328 F.3d 638, 644 (10th Cir. 2003). Congress did not abrogate Eleventh Amendment ...