Younger v. Davis County Jail et al

Filing 10

ORDER TO CURE DEFICIENT COMPLAINT & MEMORANDUM DECISION: Plaintiff must within thirty days cure the Complaint deficiencies noted. The Clerks Office shall mail Plaintiff the Pro Se Litigant Guide with a form complaint and habeas petiti on for Plaintiff choose to file an amended complaint. If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. Denying 5 Motion to Appoint Counsel. Signed by Judge Clark Waddoups on 01/02/2019. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JOSHUA A. YOUNGER,
Plaintiff,

ORDER TO CURE DEFICIENT
COMPLAINT & MEMORANDUM
DECISION

v.
DAVIS COUNTY JAIL et al.,
Defendants.

Case No. 1:18-CV-62-CW
District Judge Clark Waddoups

Plaintiff, Joshua A. Younger, a Davis County inmate, filed this pro se civil rights suit, see
42 U.S.C.S. § 1983 (2018), in forma pauperis, see id. § 1915. The Court now screens the
Complaint and orders Plaintiff to file an amended complaint to cure deficiencies before further
pursuing claims.
A. Deficiencies in Complaint
Complaint:
(a) improperly names Davis County Jail as a defendant, though it is not an independent legal
entity that can sue or be sued.
(b) possibly inappropriately allege civil-rights violations on a respondeat-superior theory.
(c) 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)).

B. 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 Plaintiff’s 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

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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).
MOTION TO APPOINT COUNSEL
The Court now addresses Plaintiff's motion for the Court to ask pro bono counsel to
represent him. Plaintiff has no constitutional right to counsel. See Carper v. Deland, 54 F.3d 613,
616 (10th Cir. 1995); Bee v. Utah State Prison, 823 F.2d 397, 399 (10th Cir. 1987). However,
the Court may in its discretion appoint counsel for indigent plaintiffs. See 28 U.S.C.S. §
1915(e)(1) (2018); Carper, 54 F.3d at 617; Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
1991). Plaintiff bears the burden of convincing the Court that his claim has enough merit to
warrant appointment of counsel. McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
In deciding whether to appoint counsel, this Court considers a variety of factors, like “'the
merits of the litigant's claims, the nature of the factual issues raised in the claims, the litigant's
ability to present his claims, and the complexity of the legal issues raised by the claims.'" Rucks

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v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting Williams, 926 F.2d at 996); accord
McCarthy, 753 F.2d at 838-39. Considering the above factors, the Court concludes here that, at
this time, Plaintiff's claims may not be colorable, the issues in this case are not complex, and
Plaintiff is not at this time too incapacitated or unable to adequately function in pursuing this
matter. Thus, the Court denies for now Plaintiff's motion for appointed counsel.
ORDER
IT IS HEREBY ORDERED that:
(1) Plaintiff must within thirty days cure the Complaint’s deficiencies noted above.
(2) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a form complaint and
habeas petition for Plaintiff to use should Plaintiff choose to file an amended complaint.
(3) If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions,
this action will be dismissed without further notice.
(4) Plaintiff's motion for appointed counsel is DENIED, (see Doc. No. 5); however, if, after the
case develops further, it appears that counsel may be needed or of specific help, the Court will
ask an attorney to appear pro bono on Plaintiff's behalf.
DATED this 2nd day of January, 2019.
BY THE COURT:

JUDGE CLARK WADDOUPS
United States District Court

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