Durre v. Dempsey
In Durre v. Dempsey, 869 F.2d 543 (10th Cir. 1989), the Court held that a prisoner failed to allege an inadequate state remedy. 869 F.2d at 547-48.
In particular, Colorado has waived sovereign immunity for damages claims resulting from the operation of a correctional facility. Id. at 547; see also Colo. Rev. Stat. 24-10-106(1)(b).
The prisoner claimed that remedy was inadequate, but we rejected his conclusory allegations of indigency, lack of counsel, and confinement. Durre, 869 F.2d at 547.
Rather, the Court found that the prisoner could petition the state court for a waiver of costs and expenses; he could proceed pro se, submit pleadings, and conduct discovery by mail, and present testimony by deposition; and he did not allege any attempt to retain counsel, nor is there a constitutional right to appointed counsel in a civil case. Id.
The Court concluded that the district court properly dismissed without prejudice a plaintiff inmate's 1983 claims because those claims were included within the subject matter of a class action to which the plaintiff was a party. Id. at 544-45.
The without prejudice dismissal "allowed plaintiff to seek redress through the class action." Id.