                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                September 24, 2014
                                  TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
    DENNY BENTON,

                Plaintiff - Appellant,

    v.                                                   No. 14-1127
                                               (D.C. No. 1:13-CV-02668-LTB)
    TOWN OF SOUTH FORK; RANDY
    HERRERA, Former Police Chief;                         (D. Colo.)
    JAMES CHAVEZ, Current Police
    Chief; SHARON FAIRCHILD, Acting
    Town Manager and Clerk; TODD
    WRIGHT, Former Town Manager;
    LARRY HEERSINK, Former Mayor;
    BILL MATTHEWS, Town Manager;
    GROVER HAWTHORN, Trustee;
    COLORADO STATE PATROL
    DISPATCH ALAMOSA,
    COLORADO; PAM STEWART,
    Police Officer; JOHN CROSS;
    SARAH COOK,

                Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.


         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

*
      This order and judgment does not constitute precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. 10th Cir. R.
32.1(A).
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.

                                     The Appeal

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

                                           2
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.




                                         3
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 and the

Colorado Anti-Discrimination Act.

       1.    Title VII

       We know that Mr. Benton intended to invoke Title VII, for he referred to

this statute in the heading of the amended complaint. But he does not say who he

is suing for the race discrimination.

                                         4
         We can fairly assume that Mr. Benton intended to sue the Town of South

Fork for the race discrimination because:

         !     Title VII authorizes suit against an employer, and

         !     the town served as Mr. Benton’s employer.

See Sauers v. Salt Lake Cnty., 1 F.3d 1122, 1125 (10th Cir. 1993). 1

         But Mr. Benton had already sued the town under Title VII—and the claim

was dismissed with prejudice. Final Judgment, Benton v. Town of South Fork,

Case No. 12-cv-336-CMA-KMT (D. Colo. 2013), ECF 110. This dismissal was

affirmed on appeal. Benton v. Town of South Fork, 553 F. App’x 772 (10th Cir.

2014) (unpublished).

         With affirmance of the dismissal with prejudice, Mr. Benton cannot refile

the same action. That, after all, is what the designation “with prejudice” means.

See Styskal v. Weld Cnty. Bd. of Cnty. Comm’rs, 365 F.3d 855, 859 (10th Cir.

2004).

         Mr. Benton argues on appeal that the court lacked jurisdiction in the prior

action because he had not yet received a right-to-sue letter by the Equal

Employment Opportunity Commission.

         The district court had jurisdiction in the prior suit. In challenging

jurisdiction over that suit, Mr. Benton states that the EEOC issued a right-to-sue

1
      In the amended complaint, Mr. Benton alleges that “Defendant is an
employer within the meaning of Title VII.” Third Am. Compl. at 2. But there are
twelve defendants named in the amended complaint. Id. at 1-2.

                                             5
letter on July 1, 2013, and that by then, the prior action had already been

dismissed. See Final Judgment, Benton v. Town of South Fork, Case No. 12-cv-

336-CMA-KMT (D. Colo. 2013), ECF 110. But, he had filed the EEOC claim on

July 18, 2011. 2 Once 180 days expired without a response, the district court

acquired jurisdiction. See EEOC v. W.H. Braum, Inc., 347 F.3d 1192, 1200 (10th

Cir. 2003). Thus, the district court had jurisdiction in the prior suit even though

the EEOC had not yet issued a right-to-sue letter.

      But the town was not the only defendant on the Title VII claim. Mr. Benton

also sued eight fellow employees of the town: Randy Herrera, James Chavez,

Sharon Fairchild, Todd Wright, Larry Heersink, Bill Mathews, Grover Hawthorn,

and Pam Stewart. None of these individuals functioned as the actual employer, for

that role was carried out by the town. See Haynes v. Williams, 88 F.3d 898, 899,

901 (10th Cir. 1996). As a result, the district court properly dismissed the Title

VII claims against the eight town employees.

      Mr. Benton also argues that the eight employees are being sued (in part) in

their official capacities. This argument has two shortcomings. First, there is

nothing in the amended complaint to suggest official-capacity claims. Second,

any official-capacity claims would have served as the equivalent of a claim against

2
       He filed the claim with the Colorado Civil Rights Division, not the EEOC.
But, the Colorado Civil Rights Division and the EEOC have a worksharing
agreement. Under that agreement, the Colorado Civil Rights Division would have
transmitted the document to the EEOC for filing. See Rodriguez v. Wet Ink, LLC,
603 F.3d 810, 813 (10th Cir. 2013).

                                           6
their mutual employer: the Town of South Fork. See Martinez v. Beggs, 563 F.3d

1082, 1091 (10th Cir. 2009) (“To the extent [the plaintiff] brings a claim against

Beggs in his official capacity, it is the same as bringing a suit against the

county.”). And, as noted above, virtually identical claims against the town had

already been dismissed with prejudice. Thus, Mr. Benton cannot renew these

claims under the guise that he is asserting new official-capacity claims against the

eight town employees.

      2.     Colorado Anti-Discrimination Act

      The federal district court did not address a claim under the Colorado Anti-

Discrimination Act. The omission was understandable, for Mr. Benton never

mentioned this statute. But, we must liberally construe the amended complaint in

light of Mr. Benton’s pro se status. See Haines v. Kerner, 404 U.S. 519, 520-21

(1972) (per curiam). And race discrimination is prohibited by the Colorado Anti-

Discrimination Act (as well as by Title VII). See Colo. Rev. Stat. § 24-34-

402(1)(a).

      A race-discrimination claim under the Colorado law was plainly

insufficient. Under the Colorado law, Mr. Benton had to plead facts suggesting

circumstances that would have allowed a reasonable inference of race

discrimination. See George v. Ute Water Conservancy Dist., 950 P.2d 1195, 1198

(Colo. 1997). But, Mr. Benton does not identify his race or suggest any facts that




                                           7
would allow a reasonable inference of race discrimination. Thus, a race-

discrimination claim under the Colorado law was facially insufficient.

      B.    Age Discrimination

      Mr. Benton has also alleged age discrimination. There are two potential

sources for a claim involving age discrimination: the Age Discrimination in

Employment Act and the Colorado Anti-Discrimination Act.

      1.    Age Discrimination in Employment Act

      In the earlier suit, Mr. Benton invoked the Age Discrimination in

Employment Act in the suit against the Town of South Fork. The claim was

dismissed with prejudice, and the dismissal was affirmed on appeal. Final

Judgment, Benton v. Town of South Fork, Case No. 12-cv-336-CMA-KMT (D.

Colo. 2013), ECF 110; Benton v. Town of South Fork, 553 F. App’x 772, 778-83

(10th Cir. 2014) (unpublished). With affirmance of the dismissal with prejudice,

Mr. Benton could not refile the same claim under the Age Discrimination in

Employment Act. Thus, in the present action, the claim against the Town of South

Fork was properly dismissed.

      As noted above, eight other town employees are being sued. But, the Age

Discrimination in Employment Act can only be asserted against the employer,

which consisted of the town rather than the fellow employees. See Butler v.

Prairie Village, Kansas, 172 F.3d 736, 744 (10th Cir. 1999) (holding that

individual supervisors cannot incur liability under the Americans with Disabilities

                                         8
Act, relying in part on cases interpreting the “employer” requirement in the Age

Discrimination in Employment Act).

      2.    Colorado Anti-Discrimination Act

      The federal district court addressed the claim under the Age Discrimination

in Employment Act, but not the Colorado Anti-Discrimination Act. As discussed

above in the context of the race-discrimination claim, omission of the Colorado

claim was understandable because the Colorado law was never mentioned in the

amended complaint. But, we must liberally construe the pro se complaint to

encompass the state law claim, as well as the federal claim. See George v. Ute

Water Conservancy Dist., 950 P.2d 1195, 1196 (Colo. App. 1997) (“[T]he federal

counterpart to the Colorado Anti-Discrimination Act is the Age Discrimination in

Employment Act of 1967.”).

      Though the district court did not address the state-law claim, it was facially

invalid. A prima facie case would require circumstances allowing a reasonable

inference of age discrimination. See id. at 1198. No such allegations appear in the

amended complaint. Mr. Benton does not say how old he is or mention anything

that would suggest adverse treatment based on his age.

      In the amended complaint, he states only that he was told that a man his age

should be looking for a different career. Third Am. Compl. at 3, 9. But, Mr.

Benton does not say:

      !     whether this reference suggests youth or old age, or

                                         9
      !      how this comment related to his termination.

This single allegation is not enough to state a claim on which relief can be granted

under the Colorado Anti-Discrimination Act. See Simms v. Oklahoma, 165 F.3d

1321, 1330 (10th Cir. 1999), abrogated in part on other grounds, Eisenhour v.

Weber Cnty., 744 F.3d 1220, 1227 (10th Cir. 2014). Thus, the district court’s

omission of the claim does not warrant reversal. Though the state-law cause of

action should have been discussed, it would not have survived any meaningful

scrutiny for failure to state a valid claim.

      C.     Retaliation

      Mr. Benton alleges that the defendants retaliated against him because he had

been sued by an arrestee. In the prior suit, the arrestee alleged that his civil rights

had been violated by Mr. Benton (as a police officer for the town).

      This allegation does not suggest a constitutional violation against Mr.

Benton. A constitutional violation could take place, for example, if Mr. Benton

had engaged in protected activity and suffered retaliation as a result. See, e.g.,

Cillo v. City of Greenwood Village, 739 F.3d 451, 460-61 (10th Cir. 2013). But,

Mr. Benton does not allege that he engaged in any activity protected by the

constitution. He arrested someone, and that person claimed that his civil rights

had been violated by Mr. Benton. In turn, Mr. Benton denies any wrongdoing and

alleges that he was terminated because of criticism growing out of the suit. Third




                                               10
Am. Compl. at 3-4. If this allegation is interpreted as a retaliation claim, it would

be missing an essential element: retaliation for a protected activity.

        The filing of lawsuits constitutes protected speech. See Van Deelen v.

Johnson, 497 F.3d 1151, 1155-56 (10th Cir. 2007). But here the lawsuit was filed

against Mr. Benton, not by him. This scenario would not be actionable as

retaliation for protected speech by Mr. Benton. As a result, the claim was properly

dismissed.

        D.    Legal Malpractice

        When Mr. Benton was sued, the town provided for a defense through its

insurer. The insurer provided two attorneys at different times: John Cross and

Sarah Cook. Mr. Benton complains about the quality of their work.

        Our task is to identify the pertinent legal theory. The district court

characterized the legal theory as one under 42 U.S.C. § 1983, then dismissed the

claim because the attorneys were not state actors. This characterization is

questionable. Criminal defendants have a constitutional right to effective

assistance of counsel, but Mr. Benton was not a criminal defendant. He was a

civil defendant. And civil defendants ordinarily have no constitutional right to

effective assistance of counsel. Nelson v. Boeing Co., 446 F.3d 1118, 1120 (10th

Cir. 2006); Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir. 1965). 3


3
        The only exception involves immigration cases. See Nelson, 446 F.3d at
1120.

                                           11
      If Mr. Benton had intended to assert a constitutional claim based on the

attorneys’ handling of the civil suit, dismissal would have been necessary. But we

have little reason to characterize the claim this way. Mr. Benton did not suggest a

constitutional claim, and a constitutional theory would not fit the allegation.

      Mr. Benton’s allegation more easily fits a cause of action for legal

malpractice. But the district court did not expressly acknowledge the existence of

a cause of action for legal malpractice. Though the omission was understandable,

we conclude that the legal malpractice claim should have been discussed. 4

Accordingly, we remand for consideration of state-law claims against Mr. Cross

and Ms. Cook for legal malpractice.

      E.     Defamation

      Mr. Benton alleges defamation by Mr. Herrera, Mr. Chavez, Ms. Fairchild,

and Mr. Wright. 5 Third Am. Compl. at 3, 7, 29, 31-32.

      The district court did not discuss a defamation claim under state law. The

omission was understandable in light of the length of the amended complaint and

4
       Instead, the court stated that if Mr. Benton had intended a legal malpractice
claim, he should have filed in state court because of the absence of diversity
jurisdiction. Order of Dismissal at 13, Benton v. Town of South Fork, Case No.
12-cv-336-BNB (D. Colo. Mar. 6, 2014), ECF 15.
5
       Mr. Benton asserted similar claims against Mr. Herrera and Mr. Chavez in
the earlier suit. Third Am. Compl. at 29, Benton v. Town of South Fork, Case No.
12-cv-336-BNB (D. Colo. Apr. 27, 2012), ECF 9. But these claims were
dismissed without prejudice. Order Adopting & Affirming February 12, 2013
Recommendation of United States Magistrate Judge at 13-14, Benton v. Town of
South Fork, Case No. 12-cv-336-CMA-KMT (D. Colo. 2013), ECF 109.

                                          12
the failure to identify the causes of action. But as discussed above, federal courts

must liberally construe the amended complaint because Mr. Benton wrote the

document pro se. Liberally construed, the amended complaint includes a

defamation claim. 6

      We believe that the district court should consider this claim in the first

instance. As a result, we remand for consideration of state-law claims for

defamation against Mr. Herrera, Mr. Chavez, Ms. Fairchild, and Mr. Wright.

      F.     Equal Pay Act

      In his appellate brief, Mr. Benton asserts claims under the Equal Pay Act,

29 U.S.C. § 206(d)(1). This statute prohibits discriminatory pay based on gender.

See 29 U.S.C. § 206(d)(1); Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1363-

64 (10th Cir. 1997). There is nothing in the amended complaint that would

suggest less pay to Mr. Benton based on the fact that he was a male. As a result,

we decline to reverse based on the existence of a claim under the Equal Pay Act.

      G.     Failure to Release Records

      In the amended complaint, Mr. Benton complains about an inability to

obtain his records from some of the defendants. Third Am. Compl. at 3, 27-28.



6
       The district court apparently realized that Mr. Benton might have intended
to assert a state-law claim of defamation. See Order of Dismissal at 8, Benton v.
Town of South Fork, 1:3-cv-02668-LTB (D. Colo. Mar. 6, 2014), ECF 15 (noting
an allegation of libel and slander, adding that “[i]t is not clear whether Plaintiff
asserts these claims pursuant to state law only”).

                                          13
Mr. Benton does not identify a cause of action; but because he is pro se, we

liberally construe the amended complaint to discern a relevant legal theory.

      The only conceivable theory involves a violation of the Colorado Open

Records Act, Colo. Rev. Stat. § 24-72-206. This theory was not acknowledged by

the district court. But the omission was not prejudicial, for no private right of

action exists under the Colorado Open Records Act. McDonald v. Miller, 945 F.

Supp. 2d 1201, 1205 (D. Colo. 2013). As a result, we cannot fault the district

court for failing to consider a meritless claim under the Act.

V.    The Remaining Claims

      Two state-law claims survive: defamation and legal malpractice. The

federal district court held that it lacked jurisdiction over any state-law claims

because diversity was lacking. But the court had the discretion to exercise

supplemental jurisdiction over the state-law claims. See 28 U.S.C. § 1367(a).

      If the district court had recognized the state-law claims of defamation and

malpractice, we might have assumed that the district court declined to exercise

supplemental jurisdiction. See Summum v. Duchesne City, 482 F.3d 1263, 1275

(10th Cir. 2007) (assuming that the district court declined supplemental

jurisdiction over state-law claims), vacated on other grounds, 555 U.S. 1210

(2009); Erikson v. Pawnee Cnty. Bd. of Cnty. Comm’rs, 263 F.3d 1151, 1155 n.6

(10th Cir. 2001) (assuming that the district court declined supplemental

jurisdiction over the state-law claims). But the district court did not expressly

                                          14
acknowledge the state-law claims of defamation and legal malpractice. We cannot

assume that the court made a conscious decision on how to rule on claims that

were not expressly acknowledged. See Posr v. Court Officer Shield No. 207, 180

F.3d 409, 419 (2d Cir. 1999) (stating that when a state-law claim had not been

discussed, the district court should have said if its failure to discuss the claim

simply reflected a choice to decline supplemental jurisdiction). As a result, we

must remand for the district court to address the state-law claims of defamation

and legal malpractice.

VI.   Disposition

      We affirm the dismissal on the federal claims involving race discrimination,

age discrimination, and retaliation. We note that the district court did not address

the claims involving the Colorado Anti-Discrimination Act and the Colorado Open

Records Act. These claims are facially deficient; thus, the district court’s failure

to consider these claims was not prejudicial. And, we reject Mr. Benton’s new

theory involving the Equal Pay Act. Nonetheless, we must remand for the district

court to address the state-law claims involving defamation and legal malpractice.

                               Remaining Defendants

      The defendants remaining on the defamation claim are Mr. Herrera, Mr.

Chavez, Ms. Fairchild, and Mr. Wright. The defendants remaining on the legal

malpractice claim are Mr. Cross and Ms. Cook.




                                           15
                              In Forma Pauperis

      Mr. Benton lacks enough money to pay the filing fee. Thus, we grant leave

to proceed in forma pauperis. See 28 U.S.C. § 1915(a).


                                     Entered for the Court



                                     Robert E. Bacharach
                                     Circuit Judge




                                       16
