(D.C. No. 1:13-CV-02668-LTB) (D. Colo.)
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges
ORDER AND JUDGMENT [*]
Robert E. Bacharach Circuit Judge
Mr. Denny Benton is a former police officer who was forced to resign from the Police Department for the Town of South Fork. In the amended complaint, he alleges race discrimination, age discrimination, retaliation, legal malpractice, defamation, and failure to release records. The district court summarily dismissed the action.
Mr. Benton appeals and seeks leave to proceed in forma pauperis. We grant leave to proceed in forma pauperis. In the appeal, we affirm in part and remand in part. We affirm the dismissal on the claims involving race discrimination, age discrimination, and retaliation. The court failed to acknowledge state claims under the Colorado Anti-Discrimination Act and the Colorado Open Records Act. But, these claims were facially deficient; thus, any error in failing to address these claims would not have been prejudicial. We would be left with two state-law claims not discussed by the district court: legal malpractice and defamation. We remand for the district court to address these claims in the first instance.
I. Preliminary Review
On screening, the district court had to determine whether the amended complaint stated a claim on which relief could be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). In addition, the district court could address Eleventh Amendment immunity even if the issue had not been raised. See United States ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008).
Our review is de novo. See Arroyo v. Starks, 589 F.3d 1091, 1094 (10th Cir. 2009) (failure to state a valid claim); Chamber of Commerce of United States v. Edmondson, 594 F.3d 742, 760 (10th Cir. 2010) (Eleventh Amendment immunity).
II. The Police Department's Status
In the caption of the amended complaint, Mr. Benton includes the town's police department as a separate defendant. Third Am. Compl. at 1. But Mr. Benton twice omitted the police department when listing the defendants. Id. at 2, 6.
The district court did not treat the police department as a separate party. Mr. Benton challenges this omission, arguing that the court should have considered the police department as a party.
Even if the court erred, the error would not have been prejudicial because the police department "is not a separate suable entity." Martinez v. Winner, 771 F.2d 424, 444 (10th Cir. 1985), modified on other grounds, 778 F.2d 553 (10th Cir. 1985), vacated on other grounds, Tyus v. Martinez, 475 U.S. 1138 (1986). Thus, even if the district court should have considered the police department a defendant, the error would not have mattered. As a defendant, the police department would have been entitled to dismissal for failure to state a valid claim.
III. The Colorado State Patrol Dispatch
The claims against the Colorado State Patrol Dispatch were summarily dismissed based on Eleventh Amendment immunity.
The dismissal was proper. The Patrol Dispatch is an arm of the state; as a result, the entity enjoys Eleventh Amendment immunity. See Sturdevant v. Paulsen, 218 F.3d 1160, 1171 (10th Cir. 2000) (holding that the Colorado State Board for Community Colleges and Occupational Education enjoys Eleventh Amendment immunity as an arm of the state). With immunity under the Eleventh Amendment, the Colorado State Patrol Dispatch was entitled to dismissal.
Mr. Benton complains that the Patrol Dispatch had not invoked the Eleventh Amendment. Pl.'s Opening Br. at 19-20. But, as discussed above, this issue can be raised sua sponte.
IV. The Claims
A. Race Discrimination
In the amended complaint, Mr. Benton alleges race discrimination. There are two potential sources for a race-discrimination claim: Title VII ...