United States District Court, D. Colorado
RECOMMENDATION REGARDING DISMISSAL
P. GALLAGHER UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on the Prisoner Complaint (ECF
No. 1) filed pro se by the Plaintiff on
June 11, 2018. The matter has been referred to this
Magistrate Judge for recommendation (ECF No.
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.
Factual and Procedural Background
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.
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.
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.
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.
The Prisoner Complaint
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).
Deficiencies in Prisoner Complaint
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.
§ 1983 and Personal Participation
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.