Croffer v. Tschetter et al
Filing
18
ORDER of Dismissal. ORDERED that the complaints and the action are dismissed. Leave to proceed in forma pauperis on appeal is denied. Any pending motions are denied as moot, by Judge Lewis T. Babcock on 3/18/13. (sgrim)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00209-BNB
VIRGIL CROFFER,
Plaintiff,
v.
MARK N. TSCHETTER,
SHARON S. GREEN, and
BEN DAVIS,
Defendants.
ORDER OF DISMISSAL
Plaintiff, Virgil Croffer, currently is incarcerated at the Denver Van Cise-Simonet
Detention Center. Mr. Croffer initiated this action by filing pro se a Prisoner Complaint
pursuant to 42 U.S.C. § 1983 (ECF No. 1) seeking money damages and injunctive
relief. In response to an order (ECF No. 5) directing him to cure deficiencies, Mr.
Croffer filed on February 12, 2013, an amended Prisoner Complaint (ECF No. 10) with
Defendants’ addresses but without any claims or request for relief, apparently assuming
the Court would refer to the Prisoner Complaint he originally filed for such information.
Mr. Croffer has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to
dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks
monetary relief against 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). Under § 1983, a plaintiff must allege that the defendants
have violated his or her rights under the Constitution and laws of the United States while
they acted under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150
(1970).
Mr. Croffer is cautioned that his ability to file a civil action or appeal in federal
court in forma pauperis pursuant to § 1915 may be barred if he has three or more
actions or appeals in any federal court that were dismissed as frivolous, malicious, or for
failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g).
Under § 1915(g), the Court may count dismissals entered prior to the enactment of this
statute. Green v. Nottingham, 90 F.3d 415, 420 (10th Cir. 1996).
The Court must construe Mr. Croffer’s complaints liberally because he is
representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the complaints reasonably can be
read “to state a valid claim on which the plaintiff could prevail, [the 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, the Court should not be an advocate
for a pro se litigant. See id. For the reasons set forth below, the amended Prisoner
Complaint and the Prisoner Complaint Mr. Croffer originally filed, as well as the action,
will be dismissed.
Mr. Croffer contends he is suing Defendants based on “false filings and dealings
that lead to an unlawful detainer and ended up causing a false eviction.” ECF No. 1 at
2. Plaintiff alleges that Defendant Mark Tschetter is an attorney with the Denver law
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firm of Tschetter, Hamrick and Sulzer, P.C.; Defendant Sharon S. Green is an agent for
the Denver firm of Continental Divide, apparently landlord for the residential rental
property from which Mr. Croffer was evicted; and Defendant Ben Davis is residential
manager for Continental Divide Management Corporation, which apparently manages
the residential rental property from which Mr. Croffer was evicted. He complains that he
was wrongfully evicted from his residence of fourteen months and his property seized
as a result of Defendants’ actions and filings.
Nowhere in the complaints does Mr. Croffer allege that Defendants are acting
under color of state law. As previously stated, under § 1983 a plaintiff must allege that
the defendants have violated his or her rights under the Constitution and laws of the
United States while they acted under color of state law. Adickes., 398 U.S. at 150.
Therefore, the complaints and the action will be dismissed pursuant to § 1915(e)(2)(B)
as legally frivolous.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Croffer files a notice of appeal he also must pay the full $455.00 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the complaints and the action are dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) as legally frivolous. It is
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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 18th
day of
March
, 2013.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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