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Cross. v. Leyba

United States District Court, District of Colorado

February 20, 2015

ELMER L. CROSS, JR., Plaintiff,
v.
SHERIFF’S DEPUTY LEYBA, SHERIFF’S DEPUTY JONES, SHERIFF’S DEPUTY ARELLANO, SHERIFF’S DEPUTY MARTINEZ, SHERIFF’S DEPUTY HARRIS, SHERIFF’S DEPUTY SYKES, SHERIFF’S DEPUTY NORCROSS, SHERIFF’S DEPUTY SWAN, and SHERIFF’S DEPUTY SPROCK, Defendants.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior Judge United States District Court.

Plaintiff, Elmer L. Cross, Jr., currently resides in Denver, Colorado. When he initiated this action on October 30, 2014 by submitting pro se a Prisoner Complaint (ECF No. 1) pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983, he was an inmate incarcerated at the Denver County Jail.

On November 4, 2014, Magistrate Judge Boyd N. Boland entered an order directing Mr. Cross to submit a certified copy of his prison trust fund statement for the six-month period immediately preceding the filing of the Complaint. After being granted three extensions of time and filing numerous documents that did not comply with the November 4 Order, Plaintiff filed, on January 27, 2015, a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 46), but stated that prison officials would not provide him with a certified copy of his account statement. Shortly thereafter, Mr. Cross notified the Court that he was released from custody on January 26, 2015 and currently resides at St. Francis Center, 2323 Curtis Street, Denver, Colorado 80205. Although Mr. Cross is no longer a prisoner, the Court will not require him to submit on the court-approved form an Application to Proceed in District Court Without Prepaying Fees or Costs, the in forma pauperis form to be used by nonprisoners. Instead, the Court grants the Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 46) filed on January 27, 2015 based on an inability to prepay fees or give security therefor.

The Court must construe the Complaint liberally because Mr. Cross 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). If the Complaint reasonably can be read “to state a valid claim on which the plaintiff could prevail, [the Court] should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, the Court should not act as an advocate for a pro se litigant. See id.

Subsection (e)(2)(B) of § 1915 requires a court to dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks monetary relief against a defendant who is immune from such relief. A claim is frivolous if it “lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A legally frivolous claim rests on “an indisputably meritless legal theory, ” such as a claim that a non-existent legal interest has been infringed. Id. at 327. For the reasons stated below, the Complaint and the action will be dismissed as frivolous.

In the Complaint, Mr. Cross begins by providing a five-page narrative about how he has been targeted for the past seven years by an “unknown-unnamed Federal Agency” that has been “lacing/poisoning me with genetically modified chemicals” in California, New Mexico, and Arizona. (See ECF No. 1 at 5-9). Mr. Cross then asserts the following three claims: (1) “aggravated attempted murder in the first degree by poisoning/lacing/cruel and unusual punishment” against Defendants Norcross and Swan; (2) “aggravated attempted murder in the first degree by poisoning/lacing and cruel and unusual punishment” against Defendants Harris, Sykes, Sprock, Jones, Arellano, Martinez, Swan, Leyba, and Norcross; and (3) obstruction of justice. (Id. at 10-13). In support of these claims, Mr. Cross alleges that while incarcerated at the Denver County Jail, Defendants Norcross and Swan “are part of such a sick, twisted, diabolical campaign against me that they purposly [sic] and deliberaltly [sic] lace/poison the toilet paper.” (Id. at 10). He further alleges that Defendants have provided him with poisoned request forms, grievances, pencils, and other objects resulting in “a salty, metallic taste in my mouth and then an instant migraine and burning skin.” (Id. at 10-11). Mr. Cross also alleges that Defendants whistle at him “24/7" as an “aggitation [sic] tactic.” (Id. at 11). He finally alleges that all fourth floor prison officers are “committing obstruction of justice (as are everyone who works in this facility and as are the entire legal establishment of Denver, Co) (the D.A.’s, The Judges, the public defenders) by directly participating and through the code of silence.” (Id. at 12). He seeks money damages as well as the “resignations/dismissals, their arrests, prosecutions and jailing/prison” of Defendants. (Id. at 14).

The Court finds that the Complaint is deficient for the same reasons the Court dismissed Plaintiff’s claims in Cross v. City of Denver, et al., No. 14-cv-02793-LTB (D. Colo. Oct. 10, 2014) and in Cross v. Sargent Koch, et al., No. 14-cv-02923-LTB (D. Colo. Oct. 28, 2014) as frivolous under § 1915(e)(2)(B). In both No. 14-cv-2793-LTB and No. 14-cv-2923-LTB, Mr. Cross made virtually identical allegations and claims against Defendant City and County of Denver and individual prison officials at the Denver County Jail and sought the same relief. For example, Mr. Cross alleged in the other two cases that:

• for the past seven years an “unknown-unnamed Federal Agency” has “laced/poisoned” his personal property in California, New Mexico, and Arizona;
• while incarcerated at the Denver County Jail from May 2014 until January 2015, his indigent packages, personal belongings, and medications were laced with poison that caused migraines, burning skin, numbness, loss of circulation in arms and hands, jaw pain, and a “metallic, salty taste in my mouth;”
• Defendants “purposly [sic] and knowingly created a very dangerous and life-threatening environment for me by constantly aggitating [sic] and harassing me and using inmate informants/rats against me in every pod/unit that I moved to leaving me no choice but to isolate myself;”
• Defendants spread the “diabolical poison over my jumpsuits and linens;”
• “Everyone who works at the [Denver County Jail] is committing intentional obstruction of justice through willful, intentional complicity through the code of silence;” and
• “the unit officers are lacing request forms, pencils, medical kites, etc.”

(See No. 14-cv-02793-LTB, ECF No. 88 at 3-13; No. 14-cv-02923-LTB, ...


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