IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02712-BNB

LEROY DAMASIO FRESQUEZ,

Plaintiff,

v.

SHERIFF TED MINKS,

MICHAEL FISH, Detention Service Manager,

JOHN DOE (CAPTAIN), March 5, 2010,

LT. MARTINALLI,

LT. G. GITTIN,

LT. J. LUCAS,

ADMINISTRATIVE SGT. RENFRO,

SGT. TROY BETKA,

SGT. SCOTT HAPP,

SGT. STEVEN WYGANT,

OFFICER KATHRINE FEROE,

DEPUTY SHERIFF CRUMBAKER,

DEPUTY SHERIFF RYAN VIERS,

DEPUTY SHERIFF DUSTIN DYELING,

DEPUTY SHERIFF ANTHONY KOTRIS,

DEPUTY SHERIFF DONALD SPRINGFIELD,

DEPUTY SHERIFF HOLLEY,

DEPUTY SHERIFF JAMES GELEUDE,

DEPUTY SHERIFF JASON RICHARDSON,

DEPUTY SHERIFF REID PERRY,

DEPUTY SHERIFF WILLIAM BOHM,

DEPUTY SHERIFF ERIK BOUGHAM,

DEPUTY SHERIFF HERBERT LONGSHORE,

DEPUTY SHERIFF #1958 (Name Unknown),

COUNSELOR MIKE COLLINS,

COUNSELOR SUPERVISOR DEBRA ELUDO,

CHANTEL CORKLE, Atty,

DOUGLAS K. WILSON, Atty,

DENNIS HALL, Jefferson County Judge,

WRITER MOTT, Atty,

LAURA WASSMUTH, Atty,

CORRECTIONAL HEALTHCARE MANAGEMENT,

CLAUDIA VAN BUREN, HSA,

RAYMOND HERR, Responsible Physician,

TRACY HAINES, LPN, and

KATHERINE BECERRA, RN,

Defendants.

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ORDER TO DISMISS IN PART AND TO DRAW IN PART

TO DISTRICT JUDGE AND MAGISTRATE JUDGE

Plaintiff, Leroy Damasio Fresquez, is a prisoner in the custody of the Colorado

Department of Corrections and currently is incarcerated at the Colorado State

Penitentiary in Cañon City, Colorado. Mr. Fresquez, acting pro se, has filed a Prisoner

Complaint pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 1331, 1343, and 1391 and 

seeks injunctive relief and money damages.

The Court construes the Complaint liberally because Mr. Fresquez 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 cannot act as an

advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated

below, the action will be dismissed in part and drawn in part to a district judge and a

magistrate judge.

Mr. Fresquez asserts his Eighth Amendment rights were violated when 

Defendants Ryan Viers and Erik Baughman physically abused him and other named

Defendants failed to provide medical treatment for the injuries he incurred as a result of

the abuse. Mr. Fresquez also asserts that his due process rights were violated when

certain Defendants tampered with and abridged his outgoing legal mail. Mr. Fresquez

further asserts Defendants committed assault and battery, harassment, retaliation

against a witness, and first degree misconduct in violation of Colorado state law. Mr.

Fresquez seeks injunctive relief and money damages.

The claims asserted against Defendants Chantel Corkle, Douglas K. Wilson,

Writer Mott, Laura Wassmuth, and Dennis Hall will be dismissed for the following

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reasons. Defendant Judge Dennis Hall is absolutely immune from liability in civil rights

suits when he is acting in his judicial capacity, unless he acts in the clear absence of all

jurisdiction. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991); Stump v. Sparkman, 435

U.S. 349, 356-57 (1978); Hunt v. Bennett, 17 F.3d 1263, 1266-67 (10th Cir. 1994). 

Defendants Wassmuth, Corkle, Mott, and Wilson also are immune from suit in § 1983

actions, whether they are prosecutors, public defenders, or private attorneys. See Polk

County v. Dodson, 454 U.S. 312, 318 and 325 (1981) (Private attorneys or public

defenders are not state actors under § 1983 and are not proper parties to this action.); 

see also, Imbler v. Pachtman, 424 U.S. 409, 420-24 (1976) (Prosecutors enjoy

immunity from suit under § 1983.).

Even if Defendants Wassmuth, Corkle, Mott, Wilson, and Hall were not immune

from suit under § 1983, the Court finds no constitutional violation based on a claim of

“ethical duty” to ensure a prisoner’s safety. Mr. Fresquez does not assert that

Defendants Corkle, Wilson, Wassmuth, Mott, or Hall personally participated in the

alleged assault, the denial of his medical needs, and the interference with his legal

papers as required under Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976). 

Mr. Fresquez also does not assert that Defendants Wassmuth, Corkle, Mott, Wilson or

Hall and jail personnel had an agreement or meeting of the minds to violate his

constitutional rights. Finally, Defendants Wassmuth, Corkle, Mott, Wilson, and Hall are

not responsible for the proper management of the jail. Mr. Fresquez, therefore, is not

able to show active participation or acquiescence through personal participation,

exercise of control of direction, failure to supervise, or tacit authorization of the offending

acts by these Defendants. See Serna v. Colo. Dep’t of Corr., 455 F.3d 1146, 1151

(10th Cir. 2006); see also, Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988). 

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Because the Court finds no legal authority for a violation of a prisoner’s constitutional

rights based on an alleged ethical duty, the claims asserted against Defendants Corkle,

Wilson, Wassmuth, Mott, and Hall will be dismissed as legally frivolous.

Finally, although Mr. Fresquez has made monthly payments for January and

February, he has not complied with the Court’s Order of November 15, 2011, regarding

the month of March. Mr. Fresquez is required to show cause why he is not able to

make a monthly payment by submitting a certified trust fund account statement. The

account statement Mr. Fresquez submitted on March 9, 2012, is not certified and does

not show the deposits and balance for his account for the entire month of February.

Mr. Fresquez will be directed to submit an account statement that is certified and

that shows the deposits to and balance of his account for the entire month of February. 

Mr. Fresquez again is instructed to make monthly payments to the Court of twenty

percent of the preceding month’s income credited to his account each time the amount

in the account exceeds $10.00 or to show cause why he has no assets and no means

by which to make each monthly payment by submitting a certified account statement

that shows the deposits and balance for the entire preceding month. Accordingly, it is

ORDERED that Defendants Chantel Corkle, Douglas K. Wilson, Writer Mott,

Laura Wassmuth, and Dennis Hall are dismissed from the action and the claims

asserted against them are dismissed as legally frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i). It is

FURTHER ORDERED that the Complaint with respect to the remaining

Defendants shall be drawn to a district judge and to a magistrate judge. It is

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FURTHER ORDERED that Mr. Fresquez is directed to submit a certified account

statement that shows deposits and balance for the month of February. It is

FURTHER ORDERED that if Mr. Fresquez fails to file a certified account

statement by April 2, 2012, as described above, the Complaint and action will be

dismissed without notice.

DATED at Denver, Colorado, this 22nd day of March , 2012.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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