United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior Judge
Plaintiff, Bonita Johnson, resides in Colorado Springs, Colorado. She initiated this action on December 2, 2015, by filing a Complaint.
On December 18, 2015, Magistrate Judge Gordon P. Gallagher reviewed the Complaint and determined that it was deficient because: named Defendants Colorado Springs Police Department, Criminal Justice Center and the El Paso County Sheriff’s Department are not entities separate from El Paso County and, therefore, are not “persons” subject to suit under 42 U.S.C. § 1983; Plaintiff failed to allege facts to show that her alleged injuries were caused by an unconstitutional policy or custom of El Paso County; Plaintiff failed to allege facts to show that Defendant Torris acted with deliberate indifference to her serious medical needs; and, Defendant Judge Henson was entitled to judicial immunity for acts taken in his judicial capacity. (ECF No. 5). Magistrate Judge Gallagher ordered Ms. Johnson to file an Amended Complaint curing the deficiencies within 30 days of the December 18 Order. (Id.).
Ms. Johnson has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Subsection (e)(2)(B)(i) and (iii) require a court to dismiss sua sponte an action at any time if the action is frivolous, or if the plaintiff 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. Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The Court must construe Ms. Johnson’s Complaint liberally because she 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 the pro se litigant's advocate. Hall, 935 F.2d at 1110. For the reasons stated below, this action will be dismissed.
I. The Amended Complaint
Ms. Johnson’s allegations are difficult to decipher. Notwithstanding, the Court ascertains the following factual allegations in the Amended Complaint. On March 10 (year unspecified), Plaintiff was stopped under suspicion of Driving Under the Influence (DUI), even though she had not been drinking. Plaintiff alleges that the results of the blood test and urine analysis were “messed up” by the hospital (ECF No. 8 at 2, 3), and she was charged with a DUI.
Ms. Johnson further states that she was charged with a second DUI by the same officer at a later time, even though she had not been drinking, but had beer on her clothing as a result of a fight with her boyfriend. According to Plaintiff, both DUI charges were tried together by Defendant Judge Hanson, who did not give her a fair trial.
Ms. Johnson alleges that following her arrest on October 4, 2014, she was detained in the El Paso County Jail. During the booking process, Defendant Deputy Torris called Defendant Jane Doe nurse to determine if Plaintiff had a medical restriction for steps. The Defendant Nurse informed Deputy Torris that Plaintiff’s only medical restriction was for a lower bunk. Defendant Torris thereafter directed Plaintiff to climb the steps to the third floor, and ignored Plaintiff’s protestations that she had a “doctor’s note for lower level and lower bunk.” (Id. at 4). Ms. Johnson states that she was taken to the third floor and placed in segregation for four hours, handcuffed, and without any toilet paper.
Ms. Johnson asserts that Defendants Colorado Springs Police Department, Criminal Justice Center, and the El Paso County Sheriff, violated her Fourth Amendment rights because evidence obtained pursuant to an illegal search and seizure was wrongfully admitted against her at trial. Her allegations can also be liberally construed to assert a claim against Defendants Torris and the Jane Doe Nurse for unconstitutional conditions of confinement. She seeks monetary relief.
A. Claims Against Law Enforcement Entities
As discussed in the December 18, 2015, Defendants Criminal Justice Center and the Colorado Springs Police Department are not entities separate from El Paso County, and, therefore are not persons subject to suit under
§ 1983. See Stump v. Gates, 777 F.Supp. 808, 814-16 (D. Colo. 1991) (citing Monell v. Dept. of Social Services, 436 U.S. 658, 690 (1978)), aff'd, 986 F.2d 1429 (10th Cir. 1993). Consequently, Defendants Colorado Springs Police Department and Criminal Justice Center are improper parties to this action and will be dismissed.
Ms. Johnson was also warned in the December 18 Order that a local government entity such as El Paso County is not liable under 42 U.S.C.
§ 1983 solely because its 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). Instead, a plaintiff seeking to hold a county liable for his injuries under
§ 1983 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); Myers v. Oklahoma County Bd. of County Comm'rs, 151 F.3d 1313, 1316-20 (10th Cir. 1998). Plaintiff cannot state a claim for relief under
§ 1983 merely by pointing to isolated ...