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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-03390-RTG
JOSHUA ABRAMS,
Plaintiff,
v.
DIVISION OF UNEMPLOYMENT INSURANCE,
Defendant.
ORDER GRANTING LEAVE TO PROCEED PURSUANT TO 28 U.S.C. § 1915
AND DIRECTING PLAINTIFF TO FILE AN AMENDED COMPLAINT
Plaintiff Joshua Abrams resides in Westminster, Colorado. Mr. Abrams has filed
pro se a Complaint (ECF No. 1) and an Application to Proceed in District Court Without
Prepayment of Fees or Costs (Long Form) ("IFP Application") (ECF No. 2). Upon review
of the IFP Application, the Court will grant Mr. Abrams leave to proceed pursuant to 28
U.S.C. § 1915 solely on the basis of his inability to prepay fees or give security therefor.
The Court conducts an initial review of the Complaint pursuant to § 1915(e)(2)(B)
and D.C.COLO.LCivR 8.1(a). Under § 1915(e)(2)(B), the Court must dismiss summarily
a claim that is (i) frivolous, or (iii) seeks monetary relief against a Defendant who is
immune from such relief.
The Court must construe the Complaint liberally because Mr. Abrams is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
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Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons discussed
below, Mr. Abrams will be directed to file an amended pleading on the court-approved
general Complaint form. Pursuant to Rule 5.1(c) of the Local Rules of Practice of the
United States District Court for the District of Colorado – Civil, “[i]f not filed
electronically, an unrepresented prisoner or party shall use the procedures, forms, and
instructions posted on the court’ s website.”
I. The Complaint
In the Complaint, Mr. Abrams asserts claims pursuant to 42 U.S.C. § 1983,
alleging that he was denied unemployment insurance benefits to which he is entitled
under state and federal law, pursuant to defective state administrative procedures, in
violation of his Fourteenth Amendment due process rights. (ECF No. 1 at 2-8). He
further claims that the Defendant discriminated against him on the basis of a disability,
in violation of Title II of the ADA, 42 U.S.C. § 12131, et seq. (Id. at 8-10). Mr. Abrams
also asserts a pendent state law claim of negligence. (Id. at 10-12). For relief, he
requests compensatory damages. (Id. at 15).
II. Discussion
The Eleventh Amendment to the United States Constitution provides: “The
Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.” U.S. CONST. amend.
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XI. The Eleventh Amendment bars a suit by a citizen against the citizen's own state in
federal court, regardless of the form of relief sought, absent a waiver of the state's
immunity. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984); Will v.
Michigan Dep't of State Police, 491 U.S. 58, 66 (1989). The immunity conferred by the
Eleventh Amendment extends to a state and its instrumentalities, including state
agencies. N. Ins. Co. of N.Y. v. Chatham Cnty., Ga., 547 U.S. 189, 193 (2006);
Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1256 (10th Cir. 2007)
(recognizing that agency of the state is entitled to Eleventh Amendment immunity). The
State of Colorado has not waived its Eleventh Amendment immunity. See Griess v.
Colorado, 841 F.2d 1042, 1044-45 (10th Cir. 1988). Furthermore, congressional
enactment of § 1983 did not abrogate Eleventh Amendment immunity. See Quern v.
Jordan, 440 U.S. 332, 340-345 (1979).
The Division of Unemployment Insurance is a division of the Colorado
Department of Labor and Employment. See Colo. Rev. Stat. § 24-1-121(3)(g) (2024).
Colorado law defines the term “agency” to include divisions. See Colo. Rev. Stat. § 24-
3-101 (2024). Therefore, the Division of Unemployment is a state agency entitled to
Eleventh Amendment immunity. Mr. Abrams’ § 1983 claims asserted against the
Defendant are subject to dismissal for lack of jurisdiction under § 1915(e)(2)(B)(iii).
The Eleventh Amendment does not bar a suit against a state official sued in his
or her capacity for prospective injunctive relief to remedy on an ongoing violation of
federal law. See Verizon Maryland v. Public Service Commission of Maryland, 535 U.S.
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635, 645 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296
(1997)); Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2007); see also Ex parte Young, 209
U.S. 123, 159-60 (1908). However, Mr. Abrams does not name a state official as a
Defendant in this action, and he seeks only monetary relief.
III. Conclusion
Mr. Abrams will be directed to file an amended Complaint, on the court-approved
general Complaint form, that addresses the jurisdictional deficiency as to his § 1983
claims.
Mr. Abrams may choose to contact the Federal Pro Se Clinic at (303) 824-5395
or https://www.cobar.org/cofederalproseclinic for possible assistance in this matter.
Accordingly, it is
ORDERED that the Application to Proceed in District Court Without Prepaying
Fees or Costs (Long Form) (ECF No. 2) is GRANTED. It is
FURTHER ORDERED that Mr. Abrams shall file, within thirty (30) days from
the date of this order, an amended Complaint, on the court-approved general
Complaint form, that complies with this order. It is
FURTHER ORDERED that Mr. Abrams shall obtain a copy of the court-approved
general Complaint form, along with the applicable instructions, from the Court’s website
at www.cod.uscourts.gov. It is
FURTHER ORDERED that if Mr. Abrams fails to file an amended Complaint
within the time allowed, the § 1983 claims asserted in this action will be dismissed for
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lack of jurisdiction.
DATED December 9, 2024.
BY THE COURT:
Richard T. Gurley
United States Magistrate Judge
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