United States District Court, D. Colorado
ORDER TO FILE SECOND AMENDED COMPLAINT
LEWIS T. BABCOCK, Senior District Judge.
At issue before the Court is Plaintiff Joshua Lamont Sutton's Amended Complaint filed on November 26, 2014, pursuant to Magistrate Judge Boyd N. Boland's Order to File Amended Complaint. In the October 24, 2014 Order, Magistrate Judge Boland directed Plaintiff to amend his Complaint in compliance with Fed.R.Civ.P. 8. Magistrate Judge Boland found that Plaintiff's claims were conclusory and vague and failed to state how each named defendant violated his rights. Plaintiff was told to state what each defendant did to him, when the act was done, how the action harmed him, and what specific legal right was violated.
The Court must construe Plaintiff's Amended Complaint liberally because he 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.
In the Nature of the Case section of the Amended Complaint, Plaintiff has identified fourteen different incidents that have taken place since December 1985. The incidents involve the alleged actions of various defendants and raise a wide range of issues including: (1) inappropriate treatment when he was a foster child, including rape, from 1985 to 1995; (2) false criminal charges on or about August 26, 1995; (3) sexual assault by another inmate on August 1, 1999; (4) failure by prison staff to move him to another cell resulting in Plaintiff's need to defend himself against another inmate on December 1, 2002, almost killing the other inmate, for which he was convicted and sentenced to five years of incarceration; (5) denial of social security benefits and false criminal charges on or about September 1, 2009; (6) conviction of third degree assault against girlfriend's x-boyfriend and attempted menacing of girlfriend based on false medical record and an attack after he was incarcerated on or about February 1, 2010; (7) cell placement on or about January 1, 2011, with another inmate who had sexually assaulted him in 1999, sexual abuse by other inmates, and incorrect diagnosis as psychotic based on his stress symptoms; (8) denial of social security and continued harassment by policeman for about eight months when Plaintiff was walking or riding his bike with his girl friend on or about October 1, 2011, based on racial profiling; (9) a stop by police on or about August 24, 2012, without reason, falsely charged with interfering with police questioning, accused of domestic violence, subjected to excessive force without cause when arrested, and wrongly convicted based on the judge and police officer's decision to destroy exculpatory evidence; (10) subjected to excessive force on or about August 25, 2012, after his arrest and to false charges of assaulting a police officer, and then placed in solitary confinement without a finding of a disciplinary infraction for seven months; (11) after finding he was to be prosecuted for assaulting a police officer on September 1, 2012, he assaulted his wife, was returned to jail, and again placed in isolation where he was tasered multiple times; (12) policeman and nurse examiner worked together to charge Plaintiff on September 8, 2012, with attempted murder; (13) the prosecutor then filed attempted murder charges on October 25, 2012, so that Plaintiff could not have his bail reduced and be released; and (14) his friends stopped helping him in November 2012 because the prosecutors continued to add more charges against him and threatened his wife that she would do jail time if she did not testify against him.
In the Cause of Action section of the Amended Complaint, Plaintiff asserts three claims: (1) Federal Tort Claims Act violation; (2) Equal rights violation; and (3) and a civil rights deprivation of his rights. Plaintiff seeks money damages.
Like the original Complaint, Plaintiff's Amended Complaint generally fails to comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. Rather than provide a short and concise statement under the Cause of Action section of the Complaint that identifies a specific constitutional violation, the nature of the violation, and how each responsible defendant participated in the violation, Plaintiff asserts a conclusory and vague statement against defendants and refers to his narrative statement in the Nature of the Case section of the Complaint form. The narrative statement does not comply with the pleading requirements stated in Rule 8.
Nonetheless, the Court has reviewed the claims as presented. Based on the following findings, the Court will dismiss the Complaint in part and direct Plaintiff to submit a Second Amended Complaint that complies with Rule 8 and the joinder requirements of the Federal Rules of Civil Procedure.
First, several of the individuals Plaintiff has named as defendants are immune from suit. Defendants Rodney Fouracher, District Attorney; Andrew Hayden, Deputy Prosecutor; Bill Thiebout, District Attorney; Stephen Talbot, District Attorney; and Atelle Jones, Prosecutor, are entitled to absolute immunity in § 1983 suits for activities within the scope of their prosecutorial duties. See Imbler v. Pachtman, 424 U.S. 409, 420-24 (1976); see also Butz v. Economou, 438 U.S. 478, 504 (1978). The Supreme Court has held that absolute immunity applies when a prosecutor appears in court in support of an application for a search warrant as a lawyer for the State, Burns v. Reed, 500 U.S. 478, 487 (1990); and when a prosecutor prepares and files an information and motion for an arrest warrant, Kalina v. Fletcher, 522 U.S. 118, 129 (1997). The Tenth Circuit has found that state prosecutors' "decisions to prosecute, their investigatory or evidence-gathering actions, their evaluation of evidence, their determination of whether probable cause exists, and their determination of what information to show the court" are activities intimately associated with the judicial process. See Nielander v. Bd. of County Comm'rs., 582 F.3d 1155, 1164 (10th Cir. 2009).
In Peterson v. Rasmussen, 91 F.3d 159, Nos. 95-2246, 95-220, (10th Cir. July 26, 1996) (unpublished), the Tenth Circuit found that a decision not to prosecute the criminal complaint against a corrections officer, is an act "intimately associated with the judicial phase of the criminal process." See id. at *2, and relied on Brodnicki v. City of Omaha, 75 F.3d 1261, 1268 (8th Cir.1996) ("The decisions relating to the initiation and dismissal of cases are at the very heart of a prosecutor's function as an advocate for the state, and absolute immunity thus attaches to those decisions."); Hammond v. Bales, 843 F.2d 1320, 1321 (10th Cir.1988) ("[T]he decision not to prosecute criminal charges is similar to the decision to prosecute and should therefore be protected by absolute immunity." (citing Dohaish v. Tooley, 670 F.2d 934, 938 (10th Cir.), cert. denied, 459 U.S. 826 (1982))); Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir.1984) ("We think that conferring with potential witnesses for the purpose of determining whether to initiate proceedings is plainly a function intimately associated with the judicial phase of the criminal process.'" (quoting Imbler, 424 U.S. at 430)), cert. denied, 469 U.S. 1127 (1985), for their conclusion.
Plaintiff asserts that in September 2009 Mr. Fouracher and Mr. Hayden did not arrest and prosecute the individuals who were responsible for having Plaintiff arrested and the individuals responsible for destroying his RV. Plaintiff also asserts that Mr. Fouracher and Mr. Hayden prosecuted him in February 2010 for attempted murder based on false medical records. He further asserts that Defendants Fouracher and Hayden then refused to arrest the victim of the menacing charge against Plaintiff for stealing his jeep, wallet, cell phone, and other exculpatory evidence, and to arrest the three inmates who assaulted him days after he was falsely arrested for the attempted murder charges.
Defendants Fouracher and Hayden actions fall within the scope of their prosecutorial duties. They, therefore, are absolutely immune from suit for prosecuting Plaintiff for attempted murder charges and for not prosecuting the victim who alleged stole items from Plaintiff or the three inmates who allegedly assaulted him.
Plaintiff also asserts that Defendants Thiebout, Talbot, and Jones, in September 2012, elected to falsely prosecute him for assaulting a Pueblo County Deputy Sheriff and that Defendants Talbot and Jones then in November 2012 filed attempted murder charges against him based on a false medical report.
Defendants Thiebout, Talbot, and Jones' actions also fall within the scope of their prosecutorial duties and they are absolutely immune from suit for prosecuting Plaintiff for an assault on a county sheriff and for attempted murder.
The claims against Defendants Fouracher, Hayden, Thiebout, Talbot, and Jones, therefore, will be dismissed as legally frivolous; and these ...