IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02337-BNB

TYRON DUANTE SMALL,

Plaintiff,

v.

THE COLORADO SPRINGS POLICE DEPARTMENT,

JOHN DOE DETECTIVE ONE, and

JOHN DOE OFFICER TWO,

Defendants.

ORDER TO DISMISS IN PART AND TO DRAW CASE 

TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE

Plaintiff, Tyron Duante Small, is in the custody of the Colorado Department of

Corrections and is incarcerated at the Colorado State Penitentiary in Canon City,

Colorado. Mr. Small initiated this action by filing pro se a Complaint asserting a

deprivation of his constitutional rights pursuant to 28 U.S.C. § 1343 and 42 U.S.C. 

§ 1983. He has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. 

§ 1915 without payment of an initial partial filing fee. 

On October 3, 2011, Magistrate Judge Boyd N. Boland determined that the

prisoner complaint was deficient because Plaintiff was suing improper parties and

because he failed to allege the personal participation of all named Defendants in the

alleged deprivation of his constitutional rights. Accordingly, Magistrate Judge Boland

directed Mr. Small to file an amended prisoner complaint within thirty days. After

receiving two extensions of time, Mr. Small submitted an amended complaint on

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January 10, 2012. 

The Court must construe the amended complaint liberally because Mr. Small 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). If the amended complaint

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.

Pursuant to 28 U.S.C. § 1915A, the Court is required to review the amended

complaint because Mr. Small is a prisoner and the Defendants are officers or

employees of a governmental entity. Pursuant to § 1915A(b)(1), the Court is required to

dismiss the complaint, or any portion of the complaint, that is frivolous. 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, 324 (1989). 

In the amended complaint, Mr. Small alleges that he was arrested in July of 2009

by Defendant John Doe Detective and John Doe Two Officer based on frivolous

allegations that Mr. Small committed a sexual assault. Mr. Small asserts that the

named Defendants failed to properly investigate the victim’s allegations and that a

thorough investigation would have revealed that the victim’s story was inconsistent. He

asserts that he was incarcerated in the El Paso County Jail from July of 2009 until May

of 2010, when he was acquitted of the sexual assault charges. He asserts claims for

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false imprisonment and due process violations. As relief, he seeks damages.

However, the Court notes that Mr. Small may not sue the Colorado Springs

Police Department because the police department is not separate from the municipality

of El Paso County, Colorado, and, therefore is not a person subject to suit under 

§ 1983. See Stump v. Gates, 777 F. Supp. 808, 814-16 (D. Colo. 1991), aff'd, 986 F.2d

1429 (10th Cir. 1993). A plaintiff seeking to hold a municipality or county liable for his

injuries under 42 U.S.C. § 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). Defendant El Paso County

cannot be held 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). Further, Mr. Small

cannot state a claim for relief under § 1983 merely by pointing to isolated incidents. 

See Monell, 436 U.S. at 694. Mr. Small fails to allege that there is a direct causal link

between a policy or custom of El Paso County and his alleged injuries. See id.

Therefore, Defendant Colorado Springs Police Department is not a proper party to this

action.

Upon completion of the Court’s review pursuant to D.C.COLO.LCivR 8.2C, the

Court has determined that Mr. Small’s claims against Defendants John Doe Detective

One and John Doe Officer Two do not appear to be appropriate for summary dismissal

and that the case should be drawn to a district judge and to a magistrate judge. See

D.C.COLO.LCivR 8.2D. Accordingly, it is

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ORDERED that Defendant Colorado Springs Police Department is dismissed as

a party to this action. It is

FURTHER ORDERED that this case shall be drawn to a district judge and to a

magistrate judge.

DATED at Denver, Colorado, this 24th day of January , 2012.

BY THE COURT:

 s/Lewis T. Babcock 

LEWIS T. BABCOCK, Senior Judge

United States District Court

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