Bagnes v. State of Utah et al
ORDER TO AMEND DEFICIENT COMPLAINT re 6 Complaint filed by Barton Bagnes. 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 Plai ntiff a copy of the Pro Se Litigant Guide; and, (3) if Plaintiff fails to timely cure the above deficiencies according to the instructions here this action will be dismissed without further notice. Signed by Judge Dale A. Kimball on 12/20/2010. (mas)
Bagnes v. State of Utah et al
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
BARTON BAGNES, Plaintiff, v. STATE OF UTAH et al., Defendants.
ORDER TO AMEND DEFICIENT COMPLAINT Case No. 2:08-CV-802 DAK District Judge Dale A. Kimball
Plaintiff, Barton Bagnes, an inmate at Salt Lake County Jail, filed this pro se civil rights suit. 1983 (2010). See 42 U.S.C.S. §
Plaintiff was allowed to proceed in forma pauperis. Reviewing the complaint under § 1915(e), the
See 28 id. 1915.
Court has determined that Plaintiff's complaint is deficient as described below. Deficiencies in Complaint Complaint: (a) (b) (c) alleges claims that appear to be invalidated by the rule in Heck, cited and further explained below. does not identify an affirmative link between State of Utah and the violation of Plaintiff's civil rights. improperly names Salt Lake County Justice Court as a defendant, though it is not an independent legal entity that can sue or be sued. does not address Judge Gibbons's potential immunity from suit, as further explained below. 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 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 is required to 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." Fed. R. Civ. P. 8(a). The
requirements of Rule 8(a) are intended to guarantee "that defendants enjoy fair notice of what the claims against them are and the grounds upon which they rest." 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). 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." 2 Hall v. Bellmon, 935 F.2d
1106, 1009 (10th Cir. 1991).
Moreover, "it is not the proper
function of the Court to assume the role of advocate for a pro se litigant." Id. at 1110. Thus, the Court cannot "supply
additional facts, [or] construct a legal theory for plaintiff that assumes facts that have not been pleaded." 880 F.2d 1188, 1197 (10th Cir. 1989). Plaintiff should consider the following points before refiling his complaint. First, the revised complaint must stand Dunn v. White,
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 supercedes original). Second, the complaint must
clearly state what each individual defendant 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
someone as a defendant based solely on his or her supervisory position. See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 3
1996) (stating supervisory status alone is insufficient to support liability under § 1983). 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. a. Heck Analysis The Court also notes that Plaintiff's claims primarily involve allegations that if true would 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 Heck clarifies that "civil tort
Cir. 2007) (citation omitted).
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 by sentencing him to "extra days." Petitioner's very imprisonment. These arguments attack
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. If this Court were to
conclude that Plaintiff's constitutional rights regarding illegal incarceration and double jeopardy were violated in a prejudicial manner, it would be stating that Plaintiff's conviction and/or sentence were not valid. Thus, this complaint "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 this case. b. Judicial Immunity It is well settled that judges "are absolutely immune from suit unless they act in 'clear absence of all jurisdiction,' meaning that even erroneous or malicious acts are not proper bases for § 1983 claims." Segler v. Felfam Ltd. P'ship, No. 08-
1466, 2009 U.S. App. LEXIS 10152, at *4 (10th Cir. May 11, 2009) (unpublished) (quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)). Regarding the claims at issue here, Judge Gibbons may
have been acting in his judicial capacity in presiding over this 5
case, so his actions would be entitled to absolute immunity.
Doran v. Sanchez, No. 08-2042, 2008 U.S. App. LEXIS 17987, at *2 (10th Cir. Aug. 19, 2008) (unpublished). 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; and, (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 20th day of December, 2010. BY THE COURT:
_____________________________ JUDGE DALE A. KIMBALL United States District Court
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