United States District Court, D. Colorado
JOSEPH A. ELLSWORTH, Plaintiff,
MICHAEL HARRIS, Inv., in His Official and Individual Capacities, CASSANDRA HARRIS, Inv., in Her Official and Individual Capacities, MIRNA BURGIEGA, Tech., in Her Official and Individual Capacities, JORGE DUNQUE, Inv., in His Official and Individual Capacities, GEORGE MUMMA, Inv., in His Official and Individual Capacities, KEVIN SAGAR, Inv., in His Official and Individual Capacities, and JENNIFER DUNCAN, Par. Off., in Her Official and Individual Capacities, Defendants.
ORDER TO DISMISS IN PART AND TO ADMINISTRATIVELY CLOSE REMAINING CLAIMS
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Joseph A. Ellsworth, is detained at the Jefferson County Detention Facility, in Golden, Colorado. He has filed a Prisoner Complaint challenging his state criminal proceeding and pre-trial detention, pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983. The Defendants are alleged to be investigators for the Jefferson County District Attorney and Sheriff's Offices, and a parole officer.
On November 3, 2014, Magistrate Judge Boyd N. Boland issued an order directing the Plaintiff to show cause, within 30 days, why this action should not be dismissed. (ECF No.6). Mr. Ellsworth filed a response to the show cause order on November 26, 2014. (ECF No. 9).
Mr. Ellsworth 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 construes the Complaint liberally because Mr. Ellsworth 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, the § 1983 claims for equitable relief will be dismissed for lack of jurisdiction. The remainder of the case will be administratively closed pending final resolution of Plaintiff's underlying state criminal proceeding.
I. The Complaint
In the Complaint, Plaintiff alleges that he was arrested on August 8, 2014 by the Defendants "for internet luring, etc." (ECF No. 1, at 4). He states that Defendant Harris then proceeded to call other state and federal law enforcement agencies to thank them for "the tip" and inform them that Plaintiff was now in custody. Mr. Ellsworth alleges that prior to his arrest, the United States Probation Department and/or the Colorado Police Department forwarded personal information contained on his confiscated cell phone to the Defendants "in an attempt to set him up for an arrest." ( Id. at 10). Plaintiff further asserts that Defendant Harris lied about his prior knowledge of Plaintiff's activities at the September 16, 2014 state court preliminary hearing. At the conclusion of the preliminary hearing, the state court found probable cause to bind Plaintiff over for trial. Mr. Ellsworth claims that Defendants violated his constitutional rights when: Defendant Harris committed perjury at the preliminary hearing; Defendants tampered with the evidence in Plaintiff's criminal case; Defendants framed him with false evidence in support of the criminal charges at the preliminary hearing; and, Defendants violated his Fourth Amendment rights by accessing the personal information on his cell phone and using the information to arrest and prosecute him. Mr. Ellsworth seeks an award of damages and equitable relief (criminal prosecution of the Defendants).
A. Request for criminal prosecution
Mr. Ellsworth lacks standing to initiate a criminal prosecution against the Defendants. "A private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). See also Keyter v. 535 Members of 110th Congress, Nos. 08-1061, 08-1063, and 08-1064, 277 F.Appx. 825, 827 (10th Cir. May 13, 2008) (unpublished); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (per curiam); Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86-87 (2d Cir. 1972) ("It is a truism, and has been for many decades, that in our federal system crimes are always prosecuted by the Federal Government, not as has sometimes been done in Anglo-American jurisdictions by private complaints."); Winslow v. Romer, 759 F.Supp. 670, 673 (D. Colo. 1991) ("Private citizens generally have no standing to institute federal criminal proceedings.").
B. Younger abstention
Absent extraordinary or special circumstances, federal courts are prohibited from interfering with ongoing state criminal proceedings. See Younger v. Harris, 401 U.S. 37 (1971); Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). Abstention is appropriate under Younger if three conditions are met: "(1) the state proceedings are ongoing; (2) the state proceedings implicate important state interests; and (3) the state proceedings afford an adequate opportunity to present the federal constitutional challenges." Phelps, 122 F.3d at 889. The abstention principles of Younger are jurisdictional and apply whether the plaintiff seeks equitable or monetary relief. See D.L. v. Unified School Distr. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004); Parkhurst v. Wyoming, 641 F.2d 775, 777 (10th Cir.1981).
The first condition for Younger abstention is met because Mr. Ellsworth concedes that the state court proceedings are ongoing. The second condition also is satisfied because the Supreme Court "has recognized that the States' interest in administering their criminal justice systems free from federal interference is one of the most powerful of the considerations that should influence a court considering equitable types of relief." Kelly v. Robinson, 479 U.S. 36, 49 (1986) (citing Younger, 401 U.S. at 44-45).
With respect to the third condition, Mr. Ellsworth maintains in his response to the show cause order that he has been frustrated in his efforts to raise his claims in the state court because his court-appointed public defender has not provided adequate representation. However, he also alleges that he has been afforded at least one hearing on the issue of counsel's representation. The fact that Plaintiff did not ultimately prevail in having his public defender removed from the case does not mean that he lacks an opportunity to present his claims in the state court. Further, Mr. Ellsworth has a state remedy available to challenge the probable cause ruling at his preliminary hearing. See White v. McFarlane, 713 P.2d 366, 368-69 (Colo. 1986) (stating that "[a] defendant seeking to challenge an erroneous ruling on probable cause may ...