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Cotter v. Hickenlooper

United States District Court, D. Colorado

April 20, 2015

JOSEPH P. COTTER, Plaintiff,
v.
MR. JOHN HICKENLOOPER, Governor of the State of Colorado, in his Official Capacity, Defendant.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Plaintiff Joseph P. Cotter resides in Poncha Springs, Colorado. On April 13, 2015, the Court received a pleading from Plaintiff titled, "Motion for Summary Judgment in Liew [sic] of Opening Brief" [ECF No. 1], which was filed pro se . The Court used the pleading to initiate this action as filed pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1331. Plaintiff has been granted leave to proceed without prepayment of fees and costs pursuant to 28 U.S.C. § 1915 (ECF No. 6).

A. Applicable Legal Principles

Pertinent to the case at bar is the authority granted to federal courts for sua sponte screening and dismissal of certain claims. In this regard, Title 28 of the United States Code, section 1915, establishes the criteria for allowing an action to proceed in forma pauperis (IFP), i.e., without prepayment of costs. Section 1915(e) (as amended) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

In addition, Congress enacted a new statutory provision at 28 U.S.C. § 1915A, entitled "Screening, " which requires the court to review complaints filed by prisoners seeking redress from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). If the complaint is "frivolous, malicious, or fails to state a claim upon which relief can be granted, " or "seeks monetary relief from a defendant who is immune from such relief, " the court must dismiss the complaint. 28 U.S.C. § 1915A(b).

Plaintiff has been granted leave to proceed IFP in this action (ECF No. 6). Moreover, his Complaint is asserted against an officer or employee of a governmental agency. Thus, his Complaint must be reviewed under the authority set forth above.

In reviewing complaints under these statutory provisions, a viable complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The question to be resolved is: whether, taking the factual allegations of the complaint, which are not contradicted by the exhibits and matters of which judicial notice may be had, and taking all reasonable inferences to be drawn from those uncontradicted factual allegations of the complaint, are the "factual allegations... enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true even if doubtful in fact[.]" Bell Atlantic Corp., 550 U.S. at 555.

The Tenth Circuit Court of Appeals has held "that plausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible." Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal citations and quotations omitted). The Circuit court has further "noted that [t]he nature and specificity of the allegations required to state a plausible claim will vary based on context.'" Id . The Court thus concluded that the applicable standard is "a wide middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of the elements of a cause of action, which the Court stated will not do." Id .

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). See also Conkleton v. Raemisch, Civil No. No. 14-1271, ___ Fed.App'x ___, 2015 WL 794901 (10th Cir. Feb. 26, 2015); Ross v. Romero, 191 Fed.App'x 682 (10th Cir. 2006) (affirming district court's sua sponte dismissal of civil rights complaint under 28 U.S.C. § 1915(b).

The Court must construe the 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). If a complaint reasonably can be read "to state a valid claim on which the plaintiff could prevail, [a 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, a court should not act as a pro se litigant's advocate. See id. Sua sponte dismissal is proper when it is patently obvious that plaintiff could not prevail on the facts alleged and allowing him an opportunity to amend his complaint would be futile. Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (internal quotations omitted).

For the reasons stated below, the Complaint and the action will be dismissed pursuant to the screening authority set forth above. The pertinent grounds which will result in the dismissal are addressed below.

B. Plaintiff's Claims

Plaintiff seeks review of an adverse administrative ruling regarding his claim for state workers' compensation benefits. (ECF No. 1 at 8). Plaintiff claims that the administrative law judge based his denial of workers' compensation benefits on perjured testimony by a Dr. Brodie. Id . at 8-9. Plaintiff apparently did not appeal this decision. However, Plaintiff filed a legal malpractice claim against the attorney who represented him at the workers' compensation hearing, claiming that his attorney failed to file a timely appeal. See id . at 28. In granting summary judgment to the attorney as to Plaintiff's legal malpractice claim, the District Court for the County of Garfield, Colorado held that the ALJ's denial of Plaintiff's workers' compensation claim was supported by substantial evidence. Id . at 33. The district court's holding was affirmed by the Colorado Court of Appeals. Id . at 10, see also id . at 35-48. Plaintiff petitioned the United States Supreme Court for a writ of certiorari, which was denied. Cotter v. The Law Offices of Paul Gertz, P.C., 135 S.Ct. 376 (-).

Plaintiff brings a claim under 42 U.S.C. § 1983 alleging that the state court proceedings denied him his Fourteenth Amendment right to due process. Id . at 20. Plaintiff also asks the Court to reverse all rulings that were based on the allegedly perjured testimony and to return his case to state court with certain ...


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