Gregory Carl Wind, Jr. v. NATHAN COATS; JARED POLIS; and DEAN WILLIAMS

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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GREGORY CARL WIND, JR.,
Plaintiff - Appellant,
v.
NATHAN COATS; JARED POLIS;
and DEAN WILLIAMS,
Defendants - Appellees.
No. 22-1169
(D.C. No. 1:21-CV-03183-LTB-GPG)
(D. Colo.)
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ORDER AND JUDGMENT*
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Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges.
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Mr. Gregory Carl Wind is a state prisoner who’s sued three state
officials based on a court rule adopted during the COVID-19 pandemic.
Colo. R. Crim. P. 24(c)(4) (July 22, 2020). The rule authorizes a court to
declare a mistrial when the court can’t safely convene a jury because of a
public health crisis. Id. Mr. Wind complains that the rule allows trial
* Oral argument would not help us decide the appeal, so we have decided
the appeal based on the record and the parties’ briefs. See Fed. R. App. P.
34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel. But
the order and judgment may be cited for its persuasive value if otherwise
appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
September 13, 2022
Christopher M. Wolpert
Clerk of Court
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delays in violation of the state constitution and a state statute. The federal
district court summarily dismissed the suit as frivolous.
In reviewing the dismissal, we apply the abuse-of-discretion
standard. Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir. 2006). In
reviewing the district court’s exercise of discretion, we consider the
underlying standard for frivolousness. A suit is frivolous “if ‘it lacks an
arguable basis either in law or in fact.’” Fratus v. DeLand, 49 F.3d 673,
674 (10th Cir. 1995) (quoting Neitzke v. Williams, 490 U.S. 319, 325
(1989)). Applying these standards, we conclude that the district court acted
within its discretion in deeming the suit frivolous.
Mr. Wind sued the three state officials in their personal and official
capacities. The district court explained that the official-capacity claims
triggered Eleventh Amendment immunity because they were, in effect,
claims against the state itself. Mr. Wind doesn’t address this explanation,
and we agree with it. Our precedent is clear that state officials sued in
their official capacities are entitled to immunity under the Eleventh
Amendment. Will v. Mich. Dep’t State Police, 491 U.S. 58, 71 (1989);
Eastwood v. Dep’t of Corr. Okla., 846 F.2d 627, 631–32 (10th Cir. 1988).
We also agree with dismissal of the claims against the state officials
in their personal capacities. These claims were asserted against the
governor, director of the department of corrections, and chief justice of the
state supreme court.
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The district court concluded that the complaint hadn’t identified any
basis of personal participation by the governor or director of the
department of corrections. Mr. Wind doesn’t address this conclusion, and
we see no error. The amended complaint contains no allegations tying
either the governor or the director to the disputed rule. Instead, Mr. Wind
says in the amended complaint that the governor and director were
complicit. But he doesn’t say how they were complicit in the adoption of
the court rule. The rule itself says that it was adopted by the Colorado
Supreme Court, and there’s no reference in the rule to participation by the
governor or director of the department of corrections.
Mr. Wind has also sued the chief justice of the state supreme court.
But the chief justice enjoys absolute immunity for his role in adopting a
court rule. Sup. Ct. Va. v. Consumers Union U.S., Inc., 446 U.S. 719, 734
(1980).
Finally, Mr. Wind argues that he enjoys individual sovereignty. But
he does not tie this argument to any of the claims in his complaint or to the
district court’s reasoning. So Mr. Wind’s alleged sovereignty doesn’t bear
on the correctness of the district court’s rulings.
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Because Mr. Wind hasn’t shown an abuse of discretion, we affirm the
dismissal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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