United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND TO ASSIGN CASE
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Arthur Santistevan, is in the custody of the Colorado Department of Corrections at the correctional complex in Buena Vista, Colorado. He initiated this action by filing, pro se, a Complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983 asserting a deprivation of his constitutional rights.
On October 7, 2014, Magistrate Judge Boyd N. Boland reviewed the Complaint and determined that it was deficient because Mr. Santistevan failed to allege facts to make an arguable showing that he was deprived of adequate medical care in violation of the Constitution, or that any of the named Defendants personally participated in the alleged constitutional deprivation. Accordingly, Magistrate Judge Boland directed Plaintiff to file an amended complaint within 30 days of the October 7 Order. After obtaining an extension of time, Plaintiff filed an Amended Complaint on December 22, 2014. (ECF No. 13).
Mr. Santistevan has been granted leave to proceed pursuant to the federal in forma pauperis statute, 28 U.S.C. § 1915. Pursuant to § 1915(e)(2)(B)(I), the Court must dismiss the action if Plaintiff's claims are frivolous or malicious. 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. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Subsection (e)(2)(B)(iii) of § 1915 requires a court to dismiss at any time an action that seeks monetary relief against a defendant who is immune from such relief.
The Court must construe the Amended Complaint liberally because Mr. Santistevan 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 pro se litigants. See Hall, 935 F.2d at 1110. For the reasons discussed below, this action will be dismissed, in part, and the remainder assigned to District Judge Raymond P. Moore and to Magistrate Judge Kathleen M. Tafoya.
I. Amended Complaint
Mr. Santistevan alleges in the Amended Complaint that on June 9, 2009, Defendant Stegink, a Jefferson County Sheriff's Department investigator, prepared an affidavit in support of an arrest warrant, knowing that the affidavit contained the false information that Plaintiff committed a burglary and criminal trespass on April 29, 2008. Plaintiff further alleges that during the criminal investigation Defendant Hart, a Jefferson County deputy sheriff, interviewed witnesses and "informed the witness(es) that they had picked out the right person in the photographic array and that the person they picked out was a habitual criminal with a lengthy criminal record." (ECF No. 13, at 6). Mr. Santistevan also alleges that Defendant Scohy, a Jefferson County Sheriff's Department investigative specialist, created an unduly suggestive photographic array in which he was the only Native American, and the other persons pictured were Caucasian males. Following a preliminary hearing, Mr. Santistevan was bound over for trial. Court-appointed advisement counsel to Plaintiff subsequently interviewed the prosecution witnesses and learned that the witnesses had been "t[a]mpered with by [Defendant] Hart." ( Id. ). Plaintiff alleges that the criminal charges were dismissed on October 3, 2012, because of witness tampering and the false information contained in the arrest warrant affidavit. Mr. Santistevan asserts that the Defendants conspired maliciously to prosecute him without probable cause, in violation of his Fourth and Fourteenth Amendment rights. He also raises § 1983 claims based on false arrest and imprisonment, deprivation of his equal protection rights, and violation of the Eighth Amendment, along with a pendent state law tort claims. Mr. Santistevan seeks monetary relief.
A. Eleventh Amendment immunity
Mr. Santistevan's § 1983 claims against the State of Colorado are barred by the Eleventh Amendment. 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 immunity through Section 1983. See Quern v. Jordan, 440 U.S. 332, 345 (1979). Accordingly, the State of Colorado is an improper party to this action and will be dismissed.
B. Personal Participation
The Amended Complaint is also deficient because Mr. Santistevan fails to allege that Defendants John Hickenlooper and the John/Jane Doe Defendant(s) were personally involved in the alleged deprivations of his constitutional rights. Magistrate Judge Boland warned Mr. Santistevan in the October 7 Order that allegations of personal participation are essential in a § 1983 action. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009) (stating that a § 1983 claim requires "personal involvement in the alleged constitutional violation."); Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (same). 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); see also Dodds v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir. 2010) ("[D]efendant-supervisors may be liable under § 1983 where an affirmative' link exists between the unconstitutional acts by their subordinates and their adoption of any plan or policy... - express or otherwise-showing their authorization or approval of such misconduct.'") (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)). A supervisor defendant is not subject to liability under § 1983 on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (stating that a supervisor can only be held liable for his own deliberate intentional acts); Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (stating that "§ 1983 does not recognize a concept of strict supervisor liability; the defendant's role must be more than one of abstract authority over individuals who actually committed a constitutional violation.").
Because Mr. Santistevan does not allege any facts to implicate Defendants Hickenlooper and John/Jane Doe in the alleged constitutional deprivations, those Defendants are ...