Gaskins v. McCarty et al

Filing 16

ORDER TO AMEND DEFICIENT COMPLAINT- IT IS HEREBY ORDERED that:(1) Plaintiff shall have THIRTY (30) DAYS from the date of this order to cure the deficiencies noted; (2) the Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide; and, (3) if Plaintiff fails to timely cure the above deficiencies according to the instructions here this action will be dismissed without further notice. Signed by Judge Dale A. Kimball on 5/03/10. (mas)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

DONNIE GASKINS, Plaintiff, v. C.A. CAMERON MCCARTY et al., Defendants.

ORDER TO AMEND DEFICIENT COMPLAINT Case No. 1:10-CV-7 DAK District Judge Dale A. Kimball

Plaintiff, Donnie Gaskins, an inmate at Utah State Prison, filed this pro se civil rights suit. (2010). See 42 U.S.C.S. § 1983 See

Plaintiff was allowed to proceed in forma pauperis.

28 id. 1915.

Reviewing the complaint under § 1915(e), the Court

has determined that Plaintiff's complaint is deficient as described below. Deficiencies in Complaint Complaint: (a) (b) (c) (d) (e) inappropriately alleges civil rights violations on a respondeat superior theory. states different defendants in caption than in text. does not clearly identify each named defendant, as John Does must each be individually numbered and described in detail. is in conflict (i.e., names some different defendants and claims) with a second complaint filed on February 25, 2010. states claim in violation of municipal liability doctrine (see below).

(f)

improperly names "Weber County Correctional Facility" as a defendant, though it is not an independent legal entity that can sue or be sued. has claims appearing to be based on conditions of current confinement; however, the complaint was apparently not submitted using the legal help Plaintiff is entitled to by his institution under the Constitution. See Lewis v. Casey, 518 U.S. 343, 356 (1996) (requiring prisoners be given "'adequate law libraries or adequate assistance from persons trained in the law' . . . to ensure that inmates . . . have a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement") (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977) (emphasis added)). Instructions to Plaintiff Under Rule 8 of the Federal Rules of Civil Procedure a

(g)

complaint is required to contain "(1) a short and plain statement of the grounds upon which the court's jurisdiction depends, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks." Fed. R. Civ. P. 8(a). The

requirements of Rule 8(a) are intended to guarantee "that defendants enjoy fair notice of what the claims against them are and the grounds upon which they rest." TV Commnc'ns Network,

Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff'd, 964 F.2d 1022 (10th Cir. 1992). Pro se litigants are not excused from compliance with the minimal pleading requirements of Rule 8. "This is so because a

pro se plaintiff requires no special legal training to recount 2

the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted." 1106, 1009 (10th Cir. 1991). Hall v. Bellmon, 935 F.2d

Moreover, "it is not the proper

function of the Court to assume the role of advocate for a pro se litigant." Id. at 1110. Thus, the Court cannot "supply

additional facts, [or] construct a legal theory for plaintiff that assumes facts that have not been pleaded." 880 F.2d 1188, 1197 (10th Cir. 1989). Plaintiff should consider the following points before refiling his complaint. First, the revised complaint must stand Dunn v. White,

entirely on its own and shall not refer to, or incorporate by reference, any portion of the original complaint. See Murray v.

Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (stating amended complaint supercedes original). Second, the complaint must

clearly state what each individual defendant did to violate Plaintiff's civil rights. See Bennett v. Passic, 545 F.2d 1260,

1262-63 (10th Cir. 1976) (stating personal participation of each named defendant is essential allegation in civil rights action). "To state a claim, a complaint must 'make clear exactly who is alleged to have done what to whom.'" Stone v. Albert, No. 08-

2222, slip op. at 4 (10th Cir. July 20, 2009) (unpublished) (emphasis in original) (quoting Robbins v. Oklahoma, 519 F.3d 3

1242, 1250 (10th Cir. 2008)).

Third, Plaintiff cannot name an

individual as a defendant based solely on his or her supervisory position. See Mitchell v. Maynard, 80 F.3d 1433, 1441, (10th

Cir. 1996) (stating supervisory status alone is insufficient to support liability under § 1983). And, fourth, Plaintiff is

warned that litigants who have had three in forma pauperis cases dismissed as frivolous or meritless will be restricted from filing future lawsuits without prepaying fees. Finally, subordinate agencies of counties are not separate legal entities with capacity to sue or be sued. See Dean v.

Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (stating sheriff's and police departments are not usually considered legal entities subject to suit under § 1983). Thus, the Court construes

Plaintiff's claims against Weber County Correctional Facility as claims against Weber County itself. To establish the liability of municipal entities, such as Weber County, under Section 1983, "a plaintiff must show (1) the existence of a municipal custom or policy and (2) a direct causal link between the custom or policy and the violation alleged." Jenkins v. Wood, 81 F.3d 988, 993-94 (10th Cir. 1996) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)). Municipal

entities cannot be held liable under § 1983 based on the doctrine of respondeat superior. See Cannon v. City and County of Denver, 4

998 F.2d 867, 877 (10th Cir. 1993); see also Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978). Plaintiff has not so far established a direct causal link between his alleged injuries and any custom or policy of Weber County. Thus, the Court concludes that Plaintiff's Complaint, as

it stands, appears to fail to state claims against Weber County. ORDER IT IS HEREBY ORDERED that: (1) Plaintiff shall have THIRTY (30) DAYS from the date of this order to cure the deficiencies noted above; (2) the Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide; and, (3) if Plaintiff fails to timely cure the above deficiencies according to the instructions here this action will be dismissed without further notice. DATED this 3rd day of May, 2010. BY THE COURT:

_____________________________ JUDGE DALE A. KIMBALL United States District Court

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