Opinion
No. 02-4164-SAC
July 17, 2003
MEMORANDUM AND ORDER
This case comes before the court on defendant's motion to dismiss the case. On October 21, 2002, plaintiff filed a pro se complaint against the State of Kansas alleging that he was "deprived of Life, Liberty, Pursuit of happiness, that his son Cole E. Gilbert, was taken: outside the confines of the U.S. Constitution." (Dk. 1). Plaintiff claims severe mental and emotional trauma due to the deprivation of Constitutional rights, seeks solely "punitive damages," and specifically refers only to the Sixth Amendment Id.
Defendant's motion to dismiss is based on its claim of immunity from suit under the Eleventh Amendment to the United States Constitution, and on 28 U.S.C. § 1915(e), which applies to in forma pauperis actions.
Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend. See Whitney v. New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997). In determining whether dismissal is proper, the court accepts the allegations of the complaint as true and construes them, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff. See Breidenbach v. Bolish, 126 F.3d 1288, 1292 (10th Cir. 1997).
The court also liberally construes the allegations of a pro se complaint. See Perkins v. Kansas Dept. of Corrections, 165 F.3d 803, 806 (10th Cir. 1999). However, the court cannot "assume the role of advocate for the pro se litigant," "construct arguments or theories for the plaintiff in the absence of any discussion of those issues," or "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The Eleventh Amendment grants the states absolute immunity from suits brought by individuals in federal court. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). When the state itself is a named defendant, the Eleventh Amendment bar operates regardless of the legal or equitable nature of the relief sought. Hensel v. Office of Chief Administrative Hearing, 38 F.3d 505, 509 (10th Cir. 1994).
Plaintiff's claim alleging a deprivation of constitutional rights most resembles a claim for relief under 42 U.S.C. § 1983. While this immunity can be waived, the State of Kansas has not done so in this case, nor has this immunity been abrogated for any cause of action that plaintiff has alleged. Further, a state is not a "person" for purposes of section 1983. See Harris v. Champion, 51 F.3d 901, 905-06 (10th Cir. 1995) (explaining that a state or state agency is not a person under section 1983 except to the extent that the plaintiff sues for prospective injunctive relief only). As a result, the Eleventh Amendment bars plaintiff's suit under 42 U.S.C. § 1983 against the State of Kansas, and it would be futile to give the plaintiff an opportunity to amend.
The court additionally finds dismissal appropriate pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii) (providing for dismissal of in forma pauperis actions if the court determines that it seeks monetary relief from a defendant who is immune from such relief.)
The State invites the court to dismiss the action as frivolous, pursuant to § 1915(e)(2)(B)(i). The court finds it unnecessary to determine if the present suit is frivolous under the statute, but notes its awareness of other cases of this kind filed by plaintiff. See e.g., Gilbert v. Kansas, 2003 WL 1090200 (D.Kan. Mar 07, 2003); Gilbert v. Kansas, 2002 WL 31928493 (D.Kan. Dec 13, 2002); Gilbert v. State of Kansas, 2002 WL 31863840 (D.Kan. Dec 16, 2002). Each of these cases has been dismissed on grounds including the immunity of the State of Kansas, giving plaintiff fair notice that such claims against this defendant cannot prevail in this court. Accordingly, in the event plaintiff files similar complaints in the future, this court will not hesitate to dismiss them as frivolous.
IT IS THEREFORE ORDERED that defendant's motion to dismiss is granted and this action is dismissed with prejudice.