United States District Court, District of Colorado
MARK A. SCHREINER, Plaintiff,
CITY OF LOUISVILLE, COLORADO, LOUISVILLE, CO, POLICE DEPARTMENT, LPD, CHIEF DAVID HAYES, LPD, OFFICER JOSH SUNDBERG, LPD, OFFICER ANTHONY MARTINEZ, LPD, SGT. JAY LANPHERE, LPD, Defendants
ORDER TO DISMISS IN PART AND TO AMEND IN PART
Lewis T. Babcock, Senior Judge United States District Court
Plaintiff Mark A. Schreiner resides in Broomfield, Colorado. He initiated this action by filing pro se a Complaint pursuant to 42 U.S.C. § 1983 and an Application to Proceed in District Court Without Prepaying Fees or Costs. The Complaint and the Application were deficient. Magistrate Judge Gordon P. Gallagher directed Plaintiff to cure the deficiencies, which he did. Plaintiff was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 on March 9, 2015.
On March 10, 2015, Magistrate Judge Gordon P. Gallagher directed Plaintiff to amend the Complaint, comply with Fed.R.Civ.P. 8, and state how each named defendant personally participated in an alleged violation. Plaintiff also was informed that the Louisville Police Department is not a separate entity from the City of Louisville, therefore, is not a person under 42 U.S.C. § 1983, and any claims against the police department must be considered as asserted against the City of Louisville. See Stump v. Gates, 777 F.Supp. 808, 814-16 (D. Colo. 1991), aff’d, 986 F.2d 1429 (10th Cir. 1993). Plaintiff further was told that municipalities, such as the City of Louisville, are not liable under 42 U.S.C. § 1983 solely because their employees inflict injury on a plaintiff. Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 694 (1978); Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). Plaintiff was further informed that to state liability against the City of Louisville he must show that a policy or custom exists and that there is a direct causal link between the policy or custom and the injury alleged. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
Magistrate Judge Gallagher also found in the March 10, 2015 Order to Amend, that Plaintiff in part did assert what Defendants did to violate his constitutional rights but asserted some claims that did not identify who specifically violated his rights. Plaintiff was directed to amend the Complaint and to state what each properly named defendant did to him, when they did it, how the action harmed him, and what specific legal right was violated. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). Plaintiff also was told that a party may not be held liable for the unconstitutional conduct of his or her subordinates on a theory of respondeat superior. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Finally, Plaintiff was told that if he failed to submit an Amended Complaint within the time allowed the Court would proceed to address only the claims that comply with Fed.R.Civ.P. 8.
Plaintiff did not file an Amended Complaint within the time allowed. He, however, filed a Motion for Clarification of Court Order, ECF No. 27, that is argumentative and borders on being abusive, ECF No. 27, and a Motion for Extension of Time to Amend, ECF No. 28, that provides no basis for the Court to grant an extension of time for Plaintiff to comply with the February 12, 2015 Order to Amend.
Furthermore, it is unreasonable that Plaintiff waited until after the thirty-day time limit had run to request clarification of the February 12, 2015 Order to Amend and to seek an extension to file an Amended Complaint. Just because Plaintiff signs and dates a motion for extension within the time period allowed to submit a pleading does not constitute a timely filing when the pleading is presented to the Court for filing after the time period has run. Plaintiff did not present the Motion for Clarification and the Motion for Extension of Time to the Court until April 10, 2015, a day after the Amended Complaint was due.
The Court finds the March 10, 2015 Order to Amend self-explanatory and the Motion for Extension of Time to Amend without basis for granting. Both Motions will be denied. Nonetheless, Plaintiff will have fourteen days from the date of this Order to file an Amended Complaint based on the following.
The Court construes the February 12, 2015 Complaint liberally because Plaintiff is a pro se litigant. 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 a pro se litigant’s advocate. See Hall, 935 F.2d at 1110.
Because Plaintiff has been granted leave to proceed pursuant to the in forma pauperis statute, 28 U.S.C. § 1915, under § 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). For the reasons stated below, the Complaint and action will be dismissed in part as legally frivolous.
The Court has reviewed Plaintiff’s eleven claims and construes the claims as follows.
I. Officers Josh Sundberg and Anthony Martinez unlawfully arrested, searched, seized and confined Plaintiff in violation of the Fourth and Fourteenth Amendment on December 14, 2012;
II. It is the policy and custom of the City of Louisville and Chief of Police to inadequately and improperly investigate and document citizen complaints of police misconduct by not writing a report of Plaintiff’s alleged kidnapping claim against his son’s mother;
III. “Defendants” maliciously prosecuted him when they wrongfully charged him with crimes and after many months the district attorney dropped all charges against Plaintiff due to lack of evidence;
IV. Defendants Sundberg, Martinez and Sergeant Jay Lanphere were negligent when they arrested Plaintiff without probable cause because they owed Plaintiff a duty to stop ...