Robinson v. Hickenlooper

          RECOMMENDATION REGARDING DISMISSAL

          GORDON P. GALLAGHER UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on the Prisoner Complaint (ECF No. 1)^[1] filed pro se by the Plaintiff on June 11, 2018. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 16)^[2]. The Court has reviewed the filings to date. The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Prisoner Complaint be dismissed with prejudice as legally frivolous.

         I. Factual and Procedural Background

         Plaintiff, David Wayne Robinson, is currently incarcerated at the Bent County Correctional Facility (BCF). At the time Plaintiff initiated this action, he was a pre-trial detainee at the Denver Detention Facility.

         On February 13, 2019, the Court ordered Plaintiff to file an amended prisoner complaint. (ECF No. 14). Mr. Robinson was warned that if he failed to file an amended prisoner complaint as directed within thirty days, the action could be dismissed without further notice. Plaintiff has failed to file an amended prisoner complaint within the time allowed and he has failed to communicate with the court in any way since the February 13 Order was issued. Therefore, the Court will review the original Prisoner Complaint (ECF No. 1), filed on June 11, 2018.

         II. Legal Standards

         The Court must construe the Prisoner Complaint liberally because Mr. Robinson 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 pro se litigants. See Hall, 935 F.2d at 1110.

         Mr. Robinson has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 13). Therefore, the Court must dismiss the action if the claims in the Prisoner Complaint are frivolous or seek damages from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i) & (iii). 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, 327-28 (1989). For the reasons discussed below, I recommend that this action be dismissed as legally frivolous.

         III. The Prisoner Complaint

         In the Prisoner Complaint, Mr. Robinson asserts three claims: (1) violation of due process; (2) separation of powers; and (3) cruel and unusual punishment. (ECF No. 1 at 4). According to Mr. Robinson, the Denver Detention Facility collects a $30.00 booking fee when a detainee is booked into jail, which is illegal in several other states. As for the specific factual allegations regarding the defendants' participation, Mr. Robinson alleges that Defendant Governor Hickenlooper enacts and retracts laws for the state, Defendant Mayor Michael Hancock oversees the city policies and the corruption, Defendant Attorney General Cynthia Coffman is supposed to press charges for criminal violations, and Defendant Sheriff Patrick Firman enforces the $30.00 booking fee. (Id.). For his second claim of “separation of powers, ” Plaintiff alleges that “Sheriff Deputies take the money when they can't impose a sentence.” (Id.). For his third claim of cruel and unusual punishment, Plaintiff alleges that “[i]t's very traumatizing to individuals[.]” (Id.). For relief, he states he is “really not sure at this point. Although Compensation is definetly [sic] a sure thing.” (Id. at 6).

         IV. Deficiencies in Prisoner Complaint

         As set forth in the February 13 Order directing Plaintiff to file an Amended Prisoner Complaint (ECF No. 14), the prisoner complaint is deficient because Plaintiff failed to adequately allege the personal participation of each named defendant, and he failed to assert factual allegations to support an arguable due process claim, separation of powers claim, and cruel and unusual punishment claim.

         A. § 1983 and Personal Participation

         The Complaint is deficient because Mr. Robinson fails to adequately allege the personal participation of any of the defendants in the violation of his federal rights. In the Court's February 13 Order, the Court directed Mr. ...