United States District Court, D. Colorado
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
GORDON P. GALLAGHER, Magistrate Judge.
Plaintiff, Lucas Edwards, is detained in the Arapahoe County Detention Facility, in Centennial, Colorado. He has filed, pro se, a Prisoner Complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983. Mr. Edwards alleges in the Complaint that in 2005, the Arapahoe County District Court, in Case No. 05DR2718, granted him full custody of the child he shared with Defendant Courtney Jones, and ordered Defendant Jones to pay $275.00 per month in child support. He further alleges that Child Enforcement Services is required by law to locate, enforce and collect (distribute) child support payments, but has failed to locate, and collect payments from, Defendant Jones. According to Plaintiff, Colorado State Child Support Services, which oversees Child Enforcement Services, "closed" the case in 2013 "due to the non-custodial parent not being located in the last three years." (ECF No. 1, at 3, 9). Mr. Edwards asserts that the Defendants violated his federal due process rights, and engaged in "misrepresentation or fraud" by failing to adhere to the agencies' child support enforcement obligations. (Id. at 5, 8, 15). He also claims that Defendant Jones is in "contempt of court" for failing to comply with the child support order. (ECF No. 1, at 4). For relief, Plaintiff seeks an order requiring his child support case be re-opened with the state agencies, that he be paid all past due child support payments, and punitive damages.
The Court construes the Complaint liberally because Mr. Edwards is not represented by counsel. 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 the pro se litigant's advocate. Hall, 935 F.2d at 1110. For the reasons stated below, Plaintiff will be directed to file an Amended Complaint.
I. Eleventh Amendment Immunity
It is unclear from the Complaint whether Mr. Edwards is suing the individual Defendants in their official capacities, individual capacities, or both. Official capacity claims against Defendants Desbien and Bucha, who are the directors of state welfare (collectively the "State Agency Director Defendants"), are construed against the State of Colorado. See Hafer v. Melo, 502 U.S. 21, 25 (1991) (stating that claims asserted against government officials in their official capacities are construed against the governmental entity). The State and its agencies are entitled to Eleventh Amendment immunity, absent a waiver. See generally Meade v. Grubbs, 841 F.2d 1512, 1525 (10th Cir. 1988) (the immunity conferred by the Eleventh Amendment extends to the state and its instrumentalities); Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1256 (10th Cir. 2007) (recognizing that agency of the state is entitled to Eleventh Amendment immunity). Congress did not abrogate Eleventh Amendment immunity through § 1983, see Quern v. Jordan, 440 U.S. 332, 345 (1979), nor has the CDOC expressly waived its sovereign immunity. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir.1988). The Eleventh Amendment prohibits suit against a state entity, regardless of the relief sought. See Higganbotham v. Okla. Transp. Com'n, 328 F.3d 638, 644 (10th Cir. 2003); see also Hunt v. Colorado Dep't of Corrections, No. 07-1400, 271 F.Appx. 778, 780-81 (10th Cir. March 28, 2008) (unpublished). Accordingly, Mr. Edwards cannot obtain a judgment for damages against the individual Defendants, sued in their official capacities. However, to the extent the Complaint asserts a cognizable claim for relief under § 1983, Plaintiff is not precluded from seeking prospective injunctive relief. See Ex Parte Young, 209 U.S. 123 (1908); see also Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 631 (10th Cir.1998) ("[A] suit against a state official in his or her official capacity seeking prospective injunctive relief is not... against the state for Eleventh Amendment purposes.").
II. Individual Liability under § 1983
A. Defendant Jones
Mr. Edwards' claims against Defendant Courtney Jones, the non-custodial parent, are not cognizable under § 1983, which provides a remedy for the deprivation of a right secured by the Constitution or federal statute, committed under color of state law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). "Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." Id. at 50 (quotation marks omitted).
Private conduct constitutes state action only if it "fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). Further, while state action can be "present if a private party is a willful participant in joint action with the State or its agents, '" Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1453 (10th Cir.1995) (quoting Dennis v. Sparks, 449 U.S. 24, 27 (1980)), "the mere acquiescence of a state official in the actions of a private party is not sufficient, " id. (citing Flagg Bros. v. Brooks, 436 U.S. 149, 164 (1978)). "[C]onstitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains." Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
There are no allegations in the Complaint suggesting that Defendant Jones' disappearance and failure to pay court-ordered child support was fairly attributable to the State.
Moreover, to the extent Plaintiff wishes to take legal action against Defendant Jones for failure to comply with a state court order for child support, his remedy is in the state courts. See generally Vaughan v. Smithson, 883 F.2d 63, 64 (10th Cir.1989) (discussing the domestic relations exception to federal jurisdiction); see also Penzoil Co v. Texaco, Inc., 481 U.S. 1, 13 (1987) (recognizing "the importance to the States of enforcing the orders and judgments of their courts").
Accordingly, Defendant Jones appears to be an improper party to this action.
B. State Agency Director Defendants
The Court next addresses the State Agency Director Defendants' potential liability, in their individual capacities, under § 1983, for allegedly failing to locate and ...