Pumphrey v. Wood et al

Filing 16

ORDER TO AMEND DEFICIENT AMENDED COMPLAINT & MEMORANDUM DECISION denying 5 Motion to be provided with copies; Denied as moot 8 Motion to Amend/Correct his complaint. Plaintiff has since filed an amended complaint.; granting 9 Motion to be provided with copies of his original and amended complaint; denying 10 Motion to Appoint Counsel; denying 14 Motion for Service of Process (Prisoner). There is no valid complaint on filed to be served. Plaintiff has thirty days from the date of this order to cure the deficiencies noted. The Clerks Office shall mail Plaintiff a copy of the Pro Se Litigant Guide. Signed by Judge Ted Stewart on 7/25/2012. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

WILLIAM C. PUMPHREY,
Plaintiff,
v.

ORDER TO AMEND DEFICIENT
AMENDED COMPLAINT, &
MEMORANDUM DECISION
Case No. 1:12-CV-115 TS

JOHN WOOD et al.,

District Judge Ted Stewart

Defendants.

Plaintiff, William C. Pumphrey, a prisoner formerly at Davis
County Jail, filed this pro se civil rights suit.1

Reviewing the

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

does not identify an affirmative link between Sheriff Todd
Richardson and the violation of Plaintiff's civil rights.

(b)

is not on a proper court-approved form civil-rights
complaint.

(c)

does not state a proper legal-access cause of action.

(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
1

See 42 U.S.C.S. § 1983 (2012).

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)).
Repeated 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
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

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).
4

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

2

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

defendant based solely on his or her supervisory position.10
Fourth, "denial of a grievance, by itself without any connection
to the violation of constitutional rights alleged by plaintiff,

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)).
10

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

3

does not establish personal participation under § 1983."11

And,

fifth, 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, the Court also notes that one of Plaintiff's claims
involves legal access.

As Plaintiff fashions his amended

complaint, he should therefore keep in mind that it is wellrecognized that prison inmates "have a constitutional right to
'adequate, effective, and meaningful' access to the courts and
that the states have 'affirmative obligations' to assure all
inmates such access."12

In Bounds v. Smith,13 the Supreme Court

expounded on the obligation to provide access to the Courts by
stating "the fundamental constitutional right of access to the
courts requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing
prisoners with adequate law libraries or adequate assistance from
persons trained in the law."14

11

Gallagher v. Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787, at *11
(10th Cir. Nov. 24, 2009).
12

Ramos v. Lamm, 639 F.2d 559, 583 (10th Cir. 1980).

13

430 U.S. 817 (1977).

14

Id. at 828 (footnote omitted & emphasis added).

4

However, to successfully assert a constitutional claim for
denial of access to the courts, a plaintiff must allege not only
the inadequacy of the library or legal assistance furnished but
also "that the denial of legal resources hindered [the
plaintiff's] efforts to pursue a nonfrivolous claim."15

In other

words, a plaintiff must show "that any denial or delay of access
to the court prejudiced him in pursuing litigation."16

Moreover,

the non-frivolous litigation involved must be "habeas corpus or
civil rights actions regarding current confinement."17
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.

15

Penrod v. Zavaras, 84 F.3d 1399, 1403 (10th Cir. 1996) (emphasis
added); Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995).
16

Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996).

17

Carper, 54 F.3d at 616; accord Lewis v. Casey, 518 U.S. 343, 353-55

(1996).

5

(4) Plaintiff's motions for order of protection and access
to a law library are DENIED.18

Plaintiff's recent move to

another institution has mooted these requests.
(5) Plaintiff's motion to amend his complaint is DENIED as
moot.19

Plaintiff has since filed an amended complaint.

(6) Plaintiff's motion to be provided with copies of his
original and amended complaints is GRANTED.20
(7) Plaintiff's second motion for appointed counsel is
DENIED,21 for the same reasons cited in the Court's denial of the
first motion.22
(8) Plaintiff's motion for service of process is DENIED.23
There is no valid complaint on file to be served.
DATED this 25th day of July, 2012.
BY THE COURT:

_____________________________
CHIEF JUDGE TED STEWART
United States District Court

18

(See Docket Entry #s 5 & 9.)

19

(See Docket Entry # 8.)

20

(See Docket Entry # 9.)

21

(See Docket Entry # 10.)

22

(See Docket Entry # 3.)

23

(See Docket Entry # 14.)

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