Howard v. Davis County DA Office et al

Filing 9

Order to Amend Deficient Complaint and MEMORANDUM DECISION. Signed by Judge Dee Benson on 4/24/12. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

JOHNNY E. HOWARD,

ORDER TO AMEND DEFICIENT
COMPLAINT, & MEMORANDUM
DECISION

Plaintiff,
v.

Case No. 1:12-CV-14 DB

DAVIS COUNTY D.A. et al.,

District Judge Dee Benson

Defendants.

Plaintiff, Johnny E. Howard, a prisoner in Dequincy,
Louisiana, filed this pro se civil rights suit.1

Reviewing the

complaint under § 1915A, the Court has determined that
Plaintiff's complaint is deficient as described below.
Deficiencies in Complaint
Complaint:
(a)

improperly names Davis County agencies as defendants, though
they are not independent legal entities that can sue or be
sued.

(b)

does not identify an affirmative link between the Davis
County entities and the violation of Plaintiff's civil
rights.

(c)

states claims against Davis County entities, in violation of
the municipal-liability doctrine (see below).

(d)

names Davis County Police Department as a defendant,
although there is no such thing.

1

See 42 U.S.C.S. § 1983 (2012).

(e)

is confusing in that it does not clearly state causes of
action and appears to bring habeas-corpus claims, which are
inappropriate in this civil-rights case.

(f)

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 must 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."2

Rule 8(a)'s requirements are meant

to guarantee "that defendants enjoy fair notice of what the
claims against them are and the grounds upon which they rest."3
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

Fed. R. Civ. P. 8(a).

3

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).

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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."4

Moreover, "it is not the

proper function of the Court to assume the role of advocate for a
pro se litigant."5

Thus, the Court cannot "supply additional

facts, [or] construct a legal theory for plaintiff that assumes
facts that have not been pleaded."6
Plaintiff should consider these points when 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 or supplement.7

Second, the

complaint must clearly state what each individual defendant did
to violate Plaintiff's civil rights.8

"To state a claim, a

complaint must 'make clear exactly who is alleged to have done
what to whom.'"9

Third, Plaintiff cannot name someone as a

4

Hall v. Bellmon, 935 F.2d 1106, 1009 (10th Cir. 1991).

5

Id. at 1110.

6

Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989).

7

See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (stating
amended complaint supercedes original).
8

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).
9

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)).

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defendant based solely on his or her supervisory position.10
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.11

Thus, the

Court construes Plaintiff's claims against Davis County agencies
as claims against Davis County itself.
To establish the liability of municipal entities, such as
Davis 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."12
Municipal entities cannot be held liable under § 1983 based on
the doctrine of respondeat superior.13

10

See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating
supervisory status alone is insufficient to support liability under § 1983).
11

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).
12

Jenkins v. Wood, 81 F.3d 988, 993-94 (10th Cir. 1996) (citing City of
Canton v. Harris, 489 U.S. 378, 385 (1989)).
13

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).

4

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 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.
(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 24th day of April, 2012.
BY THE COURT:

_____________________________
JUDGE DEE BENSON
United States District Court

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