Abreu v. Davis County et al

Filing 7

MEMORANDUM DECISION & ORDER TO CURE DEFICIENT COMPLAINT: Plaintiff must within Thirty Days cure the Complaint deficiencies noted by filing a document entitled Amended Complaint. The Clerks Office shall mail Plaintiff a Prose Litigant Guide with a black form. See order for details. Signed by Judge Robert J. Shelby on 11/18/2021. (kpf)

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THE UNITED STATES DISTRICT COURT
THE DISTRICT OF UTAH

ANGEL CHRISTOPHER ABREU,
Plaintiff,

MEMORANDUM DECISION
& ORDER TO CURE
DEFICIENT COMPLAINT

v.
DAVIS COUNTY et al.,
Defendants.

Case No. 1:21-CV-129-RJS
Chief District Judge Robert J. Shelby

Plaintiff, inmate Angel Christopher Abreu, brings this pro se civil-rights action, see 42
U.S.C.S. § 1983 (2021),1 in forma pauperis, see 28 id. § 1915. Having now screened the
Complaint, (ECF No. 5), under its statutory review function,2 the Court orders Plaintiff to file an
amended complaint to cure deficiencies before further pursuing claims.
The federal statute creating a “civil action for deprivation of rights” reads, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory . . ., subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.
42 U.S.C.S. § 1983 (2021).
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The screening statute reads:
(a) Screening.—The court shall review . . . a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.
(b) Grounds for dismissal.—On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
complaint—
(1) is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
28 U.S.C.S. § 1915A (2021).
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COMPLAINT’S DEFICIENCIES
Complaint:
(a) improperly names Davis County Jail as § 1983 defendant, when it is not independent legal
entity that can sue or be sued. See Smith v. Lawton Corr. Facility, No. CIV-18-110-C, 2018 U.S.
Dist. LEXIS 45488, at *5 (W.D. Okla. Mar. 7, 2018) (stating correctional facilities “not suable
entities in a § 1983 action”).
(b) tries to state § 1983 claims against Defendant Davis County in violation of municipalliability doctrine. (See below.)
(c) needs clarification regarding First Amendment cause of action. (See below.)
(d) needs clarification regarding excessive-force cause of action. (See below.)
(e) does not properly affirmatively link some defendants to civil-rights violations and some
claims to named defendants, as shown in complaint caption. (See below.)
(f) does not appear to recognize that medical malpractice is not federal claim.
GUIDANCE FOR 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 meeting 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.

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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 these general points before filing an amended complaint:
(1) 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). The amended
complaint may also not be added to after it is filed without moving for amendment.3
(2) 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, 338 F. App’x 757, 759 (10th Cir. 2009)
(unpublished) (emphasis in original) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th
Cir. 2008)). Plaintiff should also include, as much as possible, specific dates or at least estimates
of when alleged constitutional violations occurred.

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The rule on amending a pleading reads:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading
once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its
pleadings only with the opposing party’s written consent or the court’s
leave. The court should freely give leave when justice so requires.
Fed. R. Civ. P. 15.

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(3) Each cause of action, together with the facts and citations that directly support it,
should be stated separately. Plaintiff should be as brief as possible while still using enough words
to fully explain the “who,” “what,” “where,” “when,” and “why” of each claim. Robbins, 519
F.3d at 1248 ("The [Bell Atlantic Corp. v.] Twombly Court was particularly critical of complaints
that 'mentioned no specific, time, place, or person involved in the alleged [claim].' [550 U.S. 544,
565] n.10 (2007). Given such a complaint, 'a defendant seeking to respond to plaintiff's
conclusory allegations . . . would have little idea where to begin.' Id.").
(4) Plaintiff may not 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).
(5) Grievance denial alone with no connection to “violation of constitutional rights
alleged by plaintiff, does not establish personal participation under § 1983." Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
(6) “No action shall be brought with respect to prison conditions under . . . Federal law,
by a prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C.S. § 1997e(a) (2021). However, Plaintiff need
not include grievance details in his complaint. Exhaustion of administrative remedies is an
affirmative defense that must be raised by Defendants. Jones v. Bock, 549 U.S. 199, 216 (2007).
• Local Government Liability
To establish liability of local-government 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-

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94 (10th Cir. 1996) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)). Local
governmental entities may not 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, fails to state claims against Davis County.
• First Amendment Cause of Action
It is well-settled that "[i]nmates . . . retain protections afforded
by the First Amendment, including its directive that no law shall
prohibit the free exercise of religion." O'Lone v. Estate of
Shabazz, 482 U.S. 342, 348 (1987). Yet such protections are not
without reasonable limitations. The Supreme Court has cautioned
that prison inmates are also subject to the "necessary withdrawal or
limitation of many privileges and rights, a retraction justified by
the considerations underlying our penal system." Id. Accordingly,
the Court has held that "a prison regulation imping[ing] on
inmates’ constitutional rights . . . is valid if it is reasonably related
to legitimate penological interests." Id. at 349.
Thus, in order to allege a constitutional violation based on a
free exercise claim, a prisoner-plaintiff must survive a two-step
inquiry. First, the prisoner-plaintiff must . . . show that a prison
regulation "substantially burdened . . . sincerely-held religious
beliefs." Boles v. Neet, 486 F.3d 1177, 1182 (10th Cir.
2007). Consequently, "[t]he first questions in any free exercise
claim are whether the plaintiff's beliefs are religious in nature, and
whether those religious beliefs are sincerely held." Snyder v.
Murray City Corp., 124 F.3d 1349, 1352 (10th Cir. 1997). Second,
prison officials-defendants may "identif[y] the legitimate
penological interests that justif[ied] the impinging
conduct." Boles, 486 F.3d at 1182. At that point, courts balance the
factors set forth in Turner v. Safley, 482 U.S. 78, 89-91 (1987), to
determine the reasonableness of the regulation:
(1) whether a rational connection
exists between the prison policy
regulation and a legitimate

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governmental interest advanced as its
justification; (2) whether alternative
means of exercising the right are
available notwithstanding the policy
or regulation; (3) what effect
accommodating the exercise of the
right would have on guards, other
prisoners, and prison resources
generally; and (4) whether ready,
easy-to-implement alternatives exist
that would accommodate the
prisoner’s rights.
Boles, 486 F.3d at 1181.
Kay v. Bemis, 500 F.3d 1214, 1218-19 (10th Cir. 2007).
• Excessive Force
"An excessive force claim involves two prongs: (1) an objective
prong that asks if the alleged wrongdoing was objectively harmful
enough to establish a constitutional violation, and (2) a subjective
prong under which the plaintiff must show that the officials acted
with a sufficiently culpable state of mind." Redmond v. Crowther,
882 F.3d 927, 936 (10th Cir. 2018) (brackets and internal quotation
marks omitted). An official's state of mind is sufficiently culpable
"if he uses force maliciously and sadistically for the very purpose
of causing harm, rather than in a good faith effort to maintain or
restore discipline." Id. (internal quotation marks omitted).
We have long recognized "that a prison guard, to maintain
control of inmates, must often make instantaneous, on-the-spot
decisions concerning the need to apply force without having to
second-guess himself." Sampley v. Ruettgers, 704 F.2d 491, 496
(10th Cir. 1983). So "when prison officials must act to preserve
internal order and discipline, we afford them wide-ranging
deference." Redmond, 882 F.3d at 938 (internal quotation marks
omitted). Although this deference does not protect "actions taken
in bad faith and for no legitimate purpose," it does prevent us from
substituting our "judgment for that of officials who have made a
considered choice." Id. (internal quotation marks omitted).
Lehman v McKinnon, No. 20-1312, 2021 U.S. App. LEXIS 27250, at *5-6 (10th Cir. Sept. 10,
2021) (unpublished).

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• Affirmative Link
[A] plaintiff who brings a constitutional claim under § 1983 can't
obtain relief without first satisfying the personal-participation
requirement. That is, the plaintiff must demonstrate the defendant
"personally participated in the alleged constitutional violation" at
issue. Vasquez v. Davis, 882 F.3d 1270, 1275 (10th Cir. 2018).
Indeed, because § 1983 is a "vehicle[] for imposing personal
liability on government officials, we have stressed the need for
careful attention to particulars, especially in lawsuits involving
multiple defendants." Pahls v. Thomas, 718 F.3d 1210, 1225 (10th
Cir. 2013); see also Robbins v. Oklahoma, 519 F.3d 1242, 1250
(10th Cir. 2008) (explaining that when plaintiff brings §
1983 claims against multiple defendants, "it is particularly
important . . . that the complaint make clear exactly who is alleged
to have done what to whom"); Tonkovich v. Kan. Bd. of Regents,
159 F.3d 504, 532-33 (10th Cir. 1998)) (holding that district court's
analysis of plaintiff's § 1983 claims was "infirm" where district
court "lump[ed]" together plaintiff's claims against multiple
defendants--"despite the fact that each of the defendants had
different powers and duties and took different actions with respect
to [plaintiff]"--and "wholly failed to identify specific actions taken
by particular defendants that could form the basis of [a
constitutional] claim").
Estate of Roemer v. Johnson, 764 F. App’x 784, 790-91 (10th Cir. 2019).
“A plaintiff’s failure to satisfy this requirement will trigger swift and certain dismissal.”
Id. at 790 n.5. Indeed, the Tenth Circuit has “gone so far as to suggest that failure to satisfy the
personal-participation requirement will not only justify dismissal for failure to state a claim; it
will render the plaintiff’s claim frivolous.” Id.
ORDER
IT IS HEREBY ORDERED that:
(1) Plaintiff must within thirty days cure the Complaint’s deficiencies noted above by filing a
document entitled, “Amended Complaint,” that does not refer to or include any other document.

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(2) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a blank-form civilrights complaint which Plaintiff must use if he wishes to pursue another 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 shall not try to serve the amended complaint on Defendants; instead, the Court will
perform its screening function and determine itself whether the amended complaint warrants
service. No motion for service of process is needed. See 28 U.S.C.S. § 1915(d) (2021) (“The
officers of the court shall issue and serve all process, and perform all duties in [in forma
pauperis] cases.”).
(5) Plaintiff must tell the Court of any address change and timely comply with Court orders. See
D. Utah Civ. R. 83-1.3(e) ("In all cases, counsel and parties appearing pro se must notify the
clerk's office immediately of any change in address, email address, or telephone number.").
Failure to do so may result in this action’s dismissal for failure to prosecute. See Fed. R. Civ. P.
41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a
defendant may move to dismiss the action or any claim against it. Unless the dismissal order
states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule-except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19-operates as an adjudication on the merits.”).
(6) Time extensions are disfavored, though reasonable extensions may be granted. Any motion
for time extension must be filed no later than fourteen days before the deadline to be extended.

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(7) No direct communication is to take place with any judge. All relevant information, letters,
documents, and papers, labeled with case number, are to be directed to the Clerk of Court.
DATED this 18th day of November, 2021.
BY THE COURT:

CHIEF JUDGE ROBERT J. SHELBY
United States District Court

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