Apadaca v. Burmester et al

Filing 15

MEMORANDUM DECISION and ORDER TO AMEND DEFICIENT AMENDED COMPLAINT. Plaintiff must within thirty days cure the deficiencies noted above. The Clerks Office shall mail Plaintiff a copy of the Pro Se Litigant Guide. If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. Signed by Judge Robert J. Shelby on 11/22/2013. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ANGELO DEMETRY APADACA,
Plaintiff,

MEMORANDUM DECISION & ORDER
TO AMEND DEFICIENT AMENDED
COMPLAINT

v.
FRED BURMESTER et al.,
Defendants.

Case No. 1:13-CV-44-RJS
District Judge Robert J. Shelby

Plaintiff, Angelo Demetry Apadaca, filed this pro se civil rights suit, see 42 U.S.C.S. §
1983 (2013), in forma pauperis, see 28 id. § 1915. On June 7, 2013, the Court recited the
deficiencies in Plaintiff’s Complaint, gave him guidance as to how to cure the deficiencies, and
ordered him to file an Amended Complaint if to proceed further with this case. Plaintiff then
filed an Amended Complaint. The Court now screens the Amended Complaint and notes the
Amended Complaint is identical to the original complaint. The Court therefore orders Plaintiff
to file a second amended complaint to cure deficiencies before further pursuing his claims.
Deficiencies in Amended Complaint
Amended Complaint:
(a)

alleges claims that are possibly invalidated by the rule in Heck (see below).

(b)

possibly alleges claims that concern the constitutionality of his conviction and/or validity
of his imprisonment, which should be brought in a habeas-corpus petition, not a civilrights complaint.

(c)

brings civil-rights claims against his defense attorney, who is not properly named, as she
is not a state actor. See Garza v. Bandy, No. 08-3152, 2008 U.S. App. LEXIS 17440, at
*4 (10th Cir. Aug. 13, 2008) (unpublished) ("[T]he Supreme Court has stated that 'a
public defender does not act under color of state law when performing a lawyer's
traditional functions as counsel to a defendant in a criminal proceeding.'" (quoting Polk
County v. Dodson, 454 U.S. 312, 325 (1981)).

(d)

does not address Prosecutor Fred Burmeseter's potential immunity from suit, as further.
explained below.

(e)

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
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain "(1) a

short and plain statement of the grounds for the court's jurisdiction . . .; (2) a short and plain
statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the
relief sought." Rule 8's requirements mean to guarantee "that defendants enjoy fair notice of
what the claims against them are and the grounds upon which they rest." TV Commc'ns Network,
Inc. v ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991).
Pro se litigants are not excused from complying with these minimal pleading demands.
"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." Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). Moreover, it is improper for the Court "to assume the role of advocate for
a pro se litigant." Id. 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 supersedes original).
Second, the complaint must clearly state what each defendant--typically, a named
government employee--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.2d 1433, 1441 (10th Cir. 1996) (stating
supervisory status alone does not support § 1983 liability).
Fourth, "denial of a grievance, by itself without any connection to the violation of
constitutional rights alleged by plaintiff, does not establish personal participation under § 1983."
Gallagher v. Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787, at *11 (10th Cir. Nov. 24,
2009).
Fifth, the Court concludes that Plaintiff's claims appear to involve some allegations that if
true may invalidate his conviction and/or sentencing. "In Heck, the Supreme Court explained
that a § 1983 action that would impugn the validity of a plaintiff's underlying conviction cannot
be maintained unless the conviction has been reversed on direct appeal or impaired by collateral
proceedings." Nichols v. Baer, No. 08-4158, 2009 U.S. App. LEXIS 4302, at *4 (10th Cir. Mar.
5, 2009) (unpublished) (citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). Heck prevents
litigants "from using a § 1983 action, with its more lenient pleading rules, to challenge their

conviction or sentence without complying with the more stringent exhaustion requirements for
habeas actions." Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007) (citation omitted).
Heck clarifies that "civil tort actions are not appropriate vehicles for challenging the validity of
outstanding criminal judgments." 512 U.S. at 486.
Plaintiff argues that Defendants violated his constitutional rights in a way that may attack
Petitioner's very imprisonment. Heck requires that, when a plaintiff requests damages in a §
1983 suit, this Court must decide whether judgment in the plaintiff's favor would unavoidably
imply that the conviction or sentence is invalid. Id. at 487. Here, it appears it would regarding
some claims. If this Court were to conclude that Plaintiff's constitutional rights regarding illegal
incarceration were violated in a prejudicial manner, it would be stating that Plaintiff's conviction
and/or sentence were not valid. Thus, the involved claims "must be dismissed unless the plaintiff
can demonstrate that the conviction or sentence has already been invalidated." Id. This has not
happened and may result in dismissal of such claims.
Sixth, a prosecutor acting within the scope of his duties enjoys absolute immunity from
suit under § 1983. Imbler v. Pachtman, 424 U.S. 409, 424 (1976). Burmester's acts, as alleged
by Plaintiff, appear to relate to his advocacy before the court. This defendant therefore may be
entitled to absolute prosecutorial immunity from this lawsuit.

ORDER
IT IS HEREBY ORDERED:
(1) Plaintiff must within thirty days 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 this Order's
instructions, this action will be dismissed without further notice.
DATED this __22nd__ day of November, 2013.

BY THE COURT:

Robert J. Shelby
United States District Judge