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Harris v. Gallagher

United States District Court, D. Colorado

November 16, 2015

LAWRENCE HARRIS, Plaintiff,
v.
GORDON P. GALLAGHER, Judge Defendant.

ORDER OF DISMISSAL

LEWIS T. BABCOCK United States District Court, Senior Judge

Plaintiff Lawrence Harris resides in Minneapolis, MN. On October 13, 2015, he filed a pro se complaint against the Honorable Gordon P. Gallgher, United States Magistrate Judge. 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).

Plaintiff has been granted leave to proceed IFP in this action (ECF No. 6). Thus, his Complaint must be reviewed under the authority set forth above.

In reviewing complaints under this statutory provision, 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, 603 F. App’x 713 (10th Cir. 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.

B. Plaintiff’s Allegations and Relevant Procedural History

On November 21, 2014, Plaintiff filed pro se a Complaint for money damages in this Court at Civil Action No. 14-3153. The Court reviewed the Complaint and determined it was deficient.

Therefore, on November 21, 2014, Magistrate Judge Gordon P. Gallagher entered an order (ECF No. 3) directing Mr. Harris to cure a deficiency, i.e., either pay the $400.00 filing fee or submit an Application to Proceed in District Court Without Prepaying Fees or Costs, and to file an amended Prisoner Complaint within thirty days if he wished to pursue his claims. In that action, Mr. Harris was suing an unnamed federal court judge, apparently because he disagreed with the order of dismissal entered in Harris v. Tulsa 66ers, No. 14-cv-02765-LTB (D. Colo. Oct. 16, 2014), which dismissed the action without prejudice for improper venue. The Court informed Plaintiff that he could not obtain relief against any judicial officer who presided over his lawsuits because he disagrees with their decisions because Judges are entitled to absolute immunity from liability for actions taken in their judicial capacity, unless they acted in the clear absence of all jurisdiction.

The November 21, 2014 Order directed Mr. Harris to obtain the Court-approved forms for filing an Application to Proceed in District Court Without Prepaying Fees or Costs and a Complaint, along with the applicable instructions, from the Office of the Clerk or at www.cod.uscourts.gov, and to use those forms in curing the designated deficiency and filing an amended Complaint that sued the proper parties, complied with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, and asserted each Defendant’s personal participation in the alleged constitutional violations. The November 21, 2014 Order warned Mr. Harris that if ...


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