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Hamilton v. Boyd

United States District Court, D. Colorado

November 12, 2015

JAN B. HAMILTON, Plaintiff,
JAMES B. BOYD, Judge, PAUL METZGER, Judge, ERIN ELY, Judge, JOHN PETOSKY, Judge, DENISE LYNCH, Judge, FRANK PLAUT, Judge, JUSTICES OF SUPREME COURT OF COLORADO, JUSTICES OF COLORADO COURT OF APPEALS, FRANK GANNET, Judge, FREDERICK GANNET, Judge, BOULDIN, Judge, KENNETH PLOTZ, Judge, DON BIRD, Jailer, CATHIE WARTNER, R.N., Jail Nurse, DAVID BORCHERS, M.D., Jail Physician, SARAH ROUSH, Asst. Jailer, LEE LEIBMANN, Deputy, BEVERLY CAMPBELL, Deputy, DEBORAH KENDRICKS, Deputy, FIERRA KEANNIAN, Deputy, BEN LEGALL, Deputy, NICHOLAS FIERRA, Deputy, MATT FORESTER, Deputy, JOE DISOLVA, Sheriff, JON PEACOCK, County Mgr., COUNTY COMMISSIONERS, RICHARD PRYOR, APD Chief, BILL LINN, Asst. APD Chief, JEFF FAIN, APD Detective, DAN DAVIS, APD Sgt., MIKE TRACEY, APD Asst. Chief, LINDA CONSUEGRA, APD Asst. Chief, CHIP SEAMAN, APD Sgt., KURT WHEATLY, APD, ADAM LONDON, APD, JIM CROWLEY, Private Investigator, LEON MURRAY, Retired APD, JIM TRUE, City Atty., LAURA KOENIG, Public Defender, TINA FANG, Public Defender, MATT MORRIS, Public Defender, SHERRY CALOIA, D.A., PETER BEYEL, Deputy D.A., ANDREA BRYAN, Deputy D.A., GRAHAM JACKSON, Deputy D.A., ARNOLD MORDKIN, Defeated Deputy D.A., MARTIN BEESON, Defeated D.A., JOE KRAEBACHER, Private Attorney, SARA OATES, Private Attorney, LEONARD OATES, Private Attorney, LAWSON WELLS, Private Attorney, TOM SMITH, APCHA Attorney, JOHN STEVEN JOHNSTON, Pro Hac Vice, TOM MCCABE, Retired APCHA, CINDY TUCKER-DAVIS, Aspen Country Inn Manager, CINDY CHRISTIAN, Asst. APCHA, JOANNA GREEN, Neighbor, Aspen Country Inn, Conspirator, GAIL KING, M.D., Private Physician, STEVE BARWICK, Aspen City Manager, MIKE IRELAND, Former Mayor, BECKY AYERS, Aspen Valley Hospital Volunteer, STEVE WOODROW, Sr. Pastor, 1st Baptist/Crossroads, DEREK BROWN, Asst. Pastor, 1st Baptist/Crossroads, DAN BOSKO, Asst. Pastor, 1st Baptist/Crossroads, BLAKE APPLEBY, Chair of Bd. of Elders, 1st Baptist Church, BRUNHILDA SCHOFFLER, Conducted “Cornerstone Therapy, ” BILL HODGES, Private Attorney, BOARD OF ELDERS 1ST BAPTIST CHURCH, past and present, BOARD OF ELDERS CROSS ROADS CHURCH, past and present Aspen, VESTRY CHRIST EPISCOPAL CHURCH, VESTRY OF ST. PETER’S EPISCOPAL CHURCH, Basalt, BISHOP & STAFF DIOSES OF COLORADO, ROB MCNIELL, Bishop, JONATHAN BRICE, Rector, Christ Episcopal Church, SHARA BRICE, Wife of Rector, SHIRLEY TIPTON, Vestry Christ Episcopal, PETER WAANDERS, Director, Aspen Institute, JENNIFER CAUSING, Director’s Wife, NICKOLAS VEESSEY, Minister Aspen Chapel, CYNTHIA BOULGAULT, Associate Pastor, ADMINISTRATIVE COUNCIL, Aspen Chapel, CATHERINE ANN PROVINE, Aspen Chapel Spiritual Leader, RECTOR OF ST. PAUL’S EPISCOPAL CHURCH, Basalt, KATHARINE JEFFERTS SHERRITS, New York, U.S. Dioces, EPISCOPAL CHURCH OF THE UNITED STATES, BETH KRUELWITCH, Attorney for Aspen Chapel, MIKE NICKERSON, Aspen Community Church, Aspen, Minister, ADMINISTRATIVE COUNCIL, COMMUNITY METHODIST, Aspen, MIKE JAHN, Board of Ad. Counsel, Methodist, FONDA PATTERSON, MIKE KOSDROSKY, APCHA Mgr/Director, BLANCA O’LEARY, Chair, Democratic Party, PAUL CHESTER, Former Rental Property Manager, RALPH MELVILLE, Former Founder 1st Baptist, MARIAN MELVILLE, His Wife, CRAIG MELVILLE, Manager of Mtn. Chalet, EMPLOYEES OF THE MOUNTAIN CHALET, CARL BERGMAN, Owner of Miner’s Building and Carl’s Pharmacy, ALL EMPLOYEES OF CARL’S PHARMACY, KATIE BERGMAN, Carl Bergman’s Wife, ALL EMPLOYEES OF THE MINER’S BUILDING, BETTY CIPRIANO, Spy for Church, PAM FISHER, Former Landlord of Bed and Breakfast, JOHN FISHER, Former Landlord of Bed and Breakfast, JILL WESTERLIND, 1st Baptist Church, DON WESTERLIND, 1st Baptist Church, DAVID MASON, Board of Elders, 1st Baptist Church, RICK BORCHVEC, Board of Elders, 1st Baptist Church, LINDA DAVIS, Director Women’s Programs, 1st Baptist Church, DOUG ROVERA, M.D. Oncologist, KIM SCHEUER, M.D., DEWAYNE NEIBER, M.D., PAULA NIRCHEL, Landlord, CONSPIRATOR OF PAUL NIRCHEL, MACI MORRISS, Chair of Flower Donations, Christ Episcopal Church, ASPEN INSTITUTE, MEMBERS OF THE ELKS CLUB, TRUSTEES & LIFE TRUSTEES, Aspen Institute, JAMES PICKUP, A.I. Atty., RICK CARROL, Reporter, Aspen Times, ASPEN TIMES CORPORATE HEADQUARTERS, New York, MONTVIEW MANOR, Board of Directors, PAT HARPER, Administrator Montview Manor, PAT MARQUIS, Agent, SOTHEBY’S INTT. REAL ESTATE, JENNIFER MCPHERSON, Interim Director Colorado Civil Rights Commission, JOHNATHAN WINTERS, Division of Intake, Colorado Civil Rights Commission, BOARD OF MEDICINE, State of Colorado, DON HUMPHREY, Private Attorney, MARIA WATERS, Real Estate Commissioner, ASPEN VALLEY HOSPITAL, CYNTHIA COFFMAN, Atty. General Colorado, TIM STANISTWSKI, FBI, Glenwood Springs, CO, JIM COYLE, Exec. Director Colo. Attny. Regulation Counsel, WILLIAM CAMPBELL, Exec. Director, Colorado Bd. of Judicial Discipline, LEONARD LAUDER, President Aspen Institute, ANNE WELSH MCNULTY, and KEVIN HUEPEL, Private Attorney, Defendants.


LEWIS T. BABCOCK, Senior Judge United States District Court

Plaintiff, Jan B. Hamilton, is detained currently at the Pitkin County Jail, in Aspen, Colorado. Ms. Hamilton initiated this action on May 26, 2015, by filing a “Complaint” (ECF No. 1) against a single defendant, Judge James B. Boyd. Ms. Hamilton has paid the $400.00 filing fee. (ECF No. 21).

On July 28, 2015, Plaintiff filed a Prisoner Complaint (ECF No. 35), pursuant to 42 U.S.C. § 1983, in compliance with court orders to file her pleading on the court-approved form. (See ECF Nos. 3, 14, and 27). Ms. Hamilton named over 100 Defendants in the Prisoner Complaint.

On August 6, 2015, Magistrate Judge Craig B. Shaffer[1] reviewed the Prisoner Complaint and determined that it was deficient on numerous grounds. Specifically, Ms. Hamilton’s allegations failed to comply with the requirements of Rule 8 of the Federal Rules of Civil Procedure; Plaintiff sued private individuals and entities under § 1983 without alleging any facts to show that their conduct was fairly attributable to the state; Plaintiff failed to allege the personal participation of each named Defendant in a deprivation of her constitutional rights; some of the Defendants were entitled to judicial and prosecutorial immunity; and, Plaintiff failed to state facts to show an arguable deprivation of her Constitutional rights. (ECF No. 47). Magistrate Judge Shaffer ordered Ms. Hamilton to file an Amended Complaint within 30 days of the August 6 Order. Plaintiff filed an Amended Complaint (ECF No. 71) on September 4, 2015.

Pursuant to 28 U.S.C. § 1915A, the Court is required to review the Amended Complaint because Ms. Hamilton is a prisoner and she is seeking redress from officers or employees of a governmental entity. Under § 1915A(b), the Court must dismiss the Amended Complaint, or any portion thereof, that is (1) frivolous, or (2) that seeks monetary relief from a defendant who is immune from such relief. 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, 324 (1989).

The Court must construe the Amended Complaint liberally because Ms. Hamilton 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 a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons discussed below, this action will be dismissed.

I. The Amended Complaint

Plaintiff names 138 Defendants in the Amended Complaint. In the text of the pleading, she alleges the following:

[T]he Plaintiff seeks to recover damages for injury to her person and property because of deprivation of freedom of religion, freedom from all “involuntary servitude” in the form of mandated “conversion therapy” to be “cured of being a Lesbian” with threat of arrest, and that after she completed the year of “conversation therapy” she was nonetheless arrested and has been subjected to 10-years of alleged crimes based upon frivilous [sic] false reporting with the deliberate intent to “kill her as the bible says - every word of the bible is true” as stated by defendants. She is dying incarcerated falsely based upon complainant/defendants alleged crimes. The officials in her incarceration have blocked cancer medications with wilful and wanton intent to take her life.

(ECF No. 71 at 15). Plaintiff attaches 106 pages of narrative to the Amended Complaint in which she attempts to explain the Defendants’ roles in violating her constitutional rights. (ECF No. 71-1, 71-2, and 71-3). Ms. Hamilton seeks monetary relief.

It is questionable whether the Amended Complaint complies with Rule 8, which requires a short and plain statement showing that the plaintiff is entitled to relief. Ms. Hamilton was warned in the August 6 Order that prolix, vague and unintelligible pleadings violate the requirements of Rule 8. The Amended Complaint is prolix, and sometimes vague and unintelligible. Indeed, it appears that Plaintiff has attempted to name every person or entity whom she feels has wronged her in the past several years as Defendants in this lawsuit. Ms. Hamilton is warned that naming 138 Defendants in a lawsuit is abusive and should not be repeated in any future case that she files, or sanctions may be imposed. Notwithstanding, the Court is able to discern enough information from plaintiff’s factual allegations to determine that dismissal of the § 1983 claims against the Defendants as legally frivolous is warranted.

II. Analysis

A. Judicial Immunity

Ms. Hamilton names several judges as Defendants in the Amended Complaint: James B. Boyd, Paul Metzger, Erin Ely, John Petosky, Denise Lynch, Frank Plaut, the individual Justices of the Supreme Court of Colorado, the individual Justices of the Colorado Court of Appeals, Frank Gannet, Frederick Gannet, Kenneth Plotz, and Judge Bouldin (collectively the Defendant Judges).

Judges are absolutely immune from a civil rights suit based on actions taken in their judicial capacity, unless they acted in the clear absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 U.S. 349, 356-57 (1978); Hunt v. Bennett, 17 F.3d 1263, 1266-67 (10th Cir. 1994). Judicial immunity “is not overcome by allegations of bad faith or malice, ” Mireles, 502 U.S. at 11, or an assertion that the judge acted in error or exceeded his authority, see Stump, 435 U.S. at 1105. Further, a judge acts in the clear absence of all jurisdiction only when he “acts clearly without any colorable claim of jurisdiction.” Snell v. Tunnell, 920 F.2d 673, 686 (10th Cir.1990).

Ms. Hamilton does not allege any facts in the Amended Complaint to suggest that the Defendant Judges were acting outside of their judicial capacity. Accordingly, the claims against the Defendant Judges will be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915A.

Furthermore, any § 1983 claims asserted against the Colorado Court of Appeals, the Colorado Supreme Court, and against the state judges sued in their official capacities, are barred by the Eleventh Amendment. See Smith v. Krieger, 643 F.Supp.2d 1274, 1296 (D. Colo. 2009); Hafer v. Melo, 502 U.S. 21, 25 (1991) (explaining that a state official sued in his or her “official capacity” is generally entitled to assert the same immunities as the governmental entity for which he or she works).

B. Prosecutorial Immunity

Plaintiff also sues several prosecutors- Defendants Sherry Caloia, Peter Beyel, Andrea Bryan, Graham Jackson, Arnold Mordkin, Martin Beeson, Jim True, and Cynthia Coffman (collectively the Prosecutor Defendants).

Prosecutors are entitled to absolute immunity in § 1983 suits for activities within the scope of their prosecutorial duties. See Imbler v. Pachtman, 424 U.S. 409, 420-24 (1976); see also Butz v. Economou, 438 U.S. 478, 504 (1978). Initiating and pursuing a criminal prosecution are acts are “‘intimately associated with the judicial process.’” Snell, 920 F.2d at 686 (quoting Imbler, 424 U.S. at 430).

Ms. Hamilton’s allegations indicate that she is suing the Prosecutor Defendants for actions taken in the course of their prosecutorial duties. Accordingly, claims asserted against the Prosecutor Defendants will be dismissed as legally frivolous pursuant to 28 U.S.C. § 1915A.

C. §1983 Color of State Law Requirement

1. liability of private individuals and entities

Many of the named Defendants are private individuals or entities. Section 1983 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).

Ms. Hamilton was warned in the August 6 Order that 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). Moreover, a § 1983 plaintiff must allege more than conclusory allegations of a conspiracy between state actors and private defendants. See Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (holding conclusory allegation of conspiracy with state actors insufficient to extend § 1983 liability to private defendant); Hunt v. Bennett, 17 F.3d 1263, 1268 (10th Cir.1994) (same). And, “private attorneys, by virtue of being officers of the court, do not act under color of state law within the meaning of section 1983.” Barnard v. Young, 720 F.2d 1188, 1189 (10th Cir.1983).

The Amended Complaint suffers from the same deficiencies as the original Complaint. Ms. Hamilton does not allege any specific facts to show that the following Defendants’ conduct was fairly attributable to the state and resulted in a deprivation of her constitutional rights: Sara Oates, Leonard Oates, Lawson Wells, John Steven Johnston, Cindy Tucker-Davis, Joanna Green, Gail King, M.D., Becky Ayers, Steve Woodrow, Derek Brown, Dan Bosko, Blake Appleby, Brunhilda Schoffler, Bill Hodges, Board of Elders, 1st Baptist Church, Board of Elders Cross Roads Church, Vestry Christ Episcopal Church, Vestry of St. Peter’s Episcopal Church, Bishop & Staff Dioces of Colorado, Rob McNeill, Nickolas Veesey, Cynthia Boulgault, Administrative Council -Aspen Chapel, Catherine Ann Provine, Rector of St. Paul’s Episcopal Church, Katherine Jefferts Sherrits, Episcopal Church of the United States, Beth Kruelwitch, Mike Nickerson, Administrative Council - Community Methodist, Mike Jahn, Fonda Patterson, Craig Melville, Employees of the Mountain Chalet, Carl Bergman, All Employees of Carl’s Pharmacy, Katie Bergman, All Employees of the Miner’s Building, Betty Cipriano, Pam Fisher, John Fisher, Jill Westerlind, Don Westerlind, David Mason, Rick Borchvec, Linda Davis, Doug Rovera, Kim Scheuer, Dewayner Neiber, Paul Nirchel, Conspirator of Paula Nirchel, ...

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