United States District Court, D. Colorado
RONALD HAROLD, and as the widower and next of kin for wife, the late Olive Harold, Plaintiffs,
UNIVERSITY OF COLORADO HOSPITAL, CITY AND COUNTY OF DENVER, MAYOR MICHAEL HANCOCK, DENVER DEPARTMENT OF HUMANS SERVICES, DON MARES, DENVER DEPARTMENT OF HUMAN SERVICES, ADULT PROTECTION UNIT, JUANITA-RIOS JOHNSTON QUALITY PARTNERS HEALTH CARE SERVICES, LLC, VIVAGE QUALITY HEALTH CARE PARTNERS, HIGHLINE REHABILITATION & CARE CENTER, JEFFREY A. RICHARDSON, KIM M. RUSSELL, LISA MARIE DIPONIO, DAVID M. BERNHART, JR., ESQ., REBECCA PARKER, TAMMY MONTGOMERY, ERIN EGAN, STACY GIBBS, and DERRIC MONTANO, Defendants.
ORDER TO AMEND
GORDON P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE.
Plaintiff, Ronald Harold, is a resident of Denver Colorado. He initiated this action on September 3, 2015 by filing a Complaint (ECF No. 1). He has been granted leave to proceed in forma pauperis. (ECF No. 24).
On September 24, 2015, the Court reviewed Plaintiff’s Complaint and determined it was deficient. Therefore, Plaintiff was ordered to cure certain designated deficiencies if he wished to pursue his claims. (ECF No. 6). On October 23, 2015, Plaintiff filed an amended complaint, which was 190 pages long and asserted eighteen claims for relief against twenty-one defendants. (ECF No. 7). The Court reviewed the amended complaint and again determined it was deficient. Plaintiff was again directed to cure certain designated deficiencies and file a Second Amended Complaint if he wished to pursue his claims in this action. (ECF No. 14). Specifically, Magistrate Gallagher directed Plaintiff to file his Second Amended Complaint on the court-approved form and to file a Second Amended Complaint that complies with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure.
On November 12, 2015, Plaintiff filed an Emergency Motion for a Stay of Action (ECF No. 12) and Emergency Motion to Relocate Plaintiff’s Wife to Another Nursing Facility (ECF No. 13). In these motions, Mr. Harold requested this Court to stay a Permanent Civil Protection Order issued by Denver Probate Judge Leith, which prevented Plaintiff from seeing his wife. He also requested that this Court order his wife to be transferred to another nursing facility. Both of these motions were denied by the Court on November 23, 2015. (ECF No. 15).
After receiving two extensions of time, Plaintiff filed a Second Amended Complaint on January 13, 2016. (ECF No. 23). The Court must construe the Second Amended Complaint liberally because Plaintiff 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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the following reasons, Plaintiff will be directed to file a third amended complaint if he wishes to pursue his claims in this action.
Mr. Harold’s Second Amended Complaint is 74 pages long. It names himself personally as a Plaintiff, as well as himself as widower and next of kin for his wife, the late Olive Harold. It asserts thirty-nine claims for relief against twenty defendants. (Although only nineteen defendants are listed in the caption page, the text of the Second Amended Complaint includes a claim against Defendant Judge Elizabeth Leith, who is not listed in the caption).
The allegations in the Second Amended Complaint surround the fact that Mr. Harold’s eighty-seven year old wife, Olive Harold, became a ward of the state. Mrs. Harold passed away on November 15, 2015, after this legal action was initiated. At the time of her passing, she resided at Highline Rehabilitation and Care Community.
Mr. Harold believes his and his late wife’s constitutional rights were violated during the legal proceedings that resulted in Mrs. Harold becoming a ward of the state and a Temporary and then Permanent Civil Protection Order being entered against Mr. Harold. Plaintiff also believes numerous defendants failed to provide adequate medical care to Mrs. Harold. Further, he claims that the refusal to allow him to see or communicate with his wife violated their constitutional rights. He seeks damages.
II. Second Amended Complaint
A. Claim Against Defendant Judge Leith
First, Mr. Harold’s claim against Judge Leith is barred by absolute judicial immunity. Judges are absolutely immune from liability in civil rights suits for damages for actions taken in their judicial capacity unless the judge was acting in the clear absence of all jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435 th U.S. 349, 356-57 (1978); Hunt v. Bennett, 17 F.3d 1263, 1266-67 (10 Cir. 1994). Mr. Harold does not allege any facts that demonstrate Judge Leith acted outside the scope of her absolute immunity with respect to her rulings in the probate cases. (See ECF No. 23 at 64). Therefore, unless Plaintiff demonstrates that Judge Leith is not entitled to absolute judicial immunity, she should not be included as a Defendant in Plaintiff’s Third Amended Complaint.
B. Claims Against Denver Department of Human Services, Denver Department of Human Services - Adult Protection Unit, University of Colorado Hospital, and State Officials in their Official Capacity.
The Denver Department of Human Services, the Denver Department of Human Services - Adult Protection Unit, and the University of Colorado Hospital are entities of the State of Colorado and, therefore, are protected by Eleventh Amendment immunity. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 66 (1989); Meade v. Grubbs, 841 F.2d 1512, 1525-26 (10th Cir. 1988); see also Jackson v. City and County of Denver, 628 F.Supp.2d 1275, 1285 (D. Colo. 2008) (citing Freeman v. White, 2006 U.S. Dist. LEXIS 70315, 2006 WL 2793139, at *8-9 (D. Colo. Sept 28, 2006) ("DDHS is in all cases an arm of the state for purposes of Eleventh Amendment immunity."). Similarly, the official capacity claims against state officials are construed as claims asserted 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). “It is well established that absent an unmistakable waiver by the state of its Eleventh Amendment immunity, or an unmistakable abrogation of such immunity by Congress, the amendment provides absolute immunity from suit in federal courts for states and their agencies.” Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 588 (10th Cir. 1994), overrruled on other grounds by ...