Cosey v. Davis County

Filing 13

ORDER TO AMEND DEFICIENT COMPLAINT re 3 Complaint filed by Eugene T. Cosey. Plaintiff shall have thirty (30) days from the date of this order to cure the deficiencies noted. If Plaintiff fails to timely cure the deficiencies this action will be dismissed without further notice. Signed by Judge Dee Benson on 7/26/2011. (rlr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

EUGENE COSEY,

ORDER TO AMEND DEFICIENT
COMPLAINT

Plaintiff,
v.

Case No. 1:10-CV-183 DB

DAVIS COUNTY,

District Judge Dee Benson

Defendant.

Plaintiff, Eugene Cosey, a federal inmate in Texas, filed
this pro se civil rights suit.

See 42 U.S.C.S. § 1983 (2011).

Plaintiff was allowed to proceed in forma pauperis.
1915.

See 28 id.

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

determined that Plaintiff's complaint is deficient as described
below.
Deficiencies in Complaint
Complaint:
(a)

states claim in violation of municipal liability doctrine
(see below).

(b)

does not affirmatively link an individual defendant to the
alleged violation of his civil rights.

(c)

does not identify an injury.

(d)

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
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
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
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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."

Dunn v. White,

880 F.2d 1188, 1197 (10th Cir. 1989).
Plaintiff should consider the following points before
refiling his complaint.

First, the revised complaint must stand

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
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
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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, to establish the liability of municipal entities,
such as Davis County, under § 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, 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 Davis
County.

Thus, the Court concludes that Plaintiff's Complaint, as

it stands, appears to fail to state claims against Davis 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;

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(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 26th day of July, 2011.
BY THE COURT:

_____________________________
JUDGE DEE BENSON
United States District Court

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