Tijerina v. Patterson et al

Filing 34

ORDER TO AMEND DEFICIENT SECOND AMENDED COMPLAINT & MEMORANDUM DECISION- IT IS ORDERED: (1) Plaintiff must within thirty days cure the deficiencies noted. (2) The Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide. (3) If Pl aintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. (4) this is Plaintiff's final opportunity to submit a complaint in this matter compliant with the Court's several orders regarding the deficiencies of his original and amended complaints. Signed by Judge Ted Stewart on 4/28/2011. (mas)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________________________________________
) ORDER TO AMEND DEFICIENT
) SECOND AMENDED COMPLAINT
Plaintiff,
) & MEMORANDUM DECISION
)
v.
) Case No. 2:08-CV-968 TS
)
TOM PATTERSON et al.,
) District Judge Ted Stewart
)
Defendants.
)
_________________________________________________________________
DAN HENRY TIJERINA SR.,

Plaintiff, inmate Dan Henry Tijerina Sr., filed this pro se
civil rights suit, see 42 U.S.C.S. § 1983 (2011), in forma
pauperis, see 28 id. § 1915.

After the Court's initial screening

revealed Plaintiff's Amended Complaint was deficient, see id. §
1915A, Plaintiff responded, to an order to cure those
deficiencies, with a second amended complaint.

The Court now

screens that second amended complaint, which is quite similar to
the original and amended complaints, and orders Plaintiff to file
a third amended complaint to cure continuing deficiencies before
further pursuing his claims.
Deficiencies in Complaint
(a)

Claims appear to be based on conditions of current
confinement; however, the complaint was not submitted
through contract attorneys.

(b)

Tom Patterson appears to be named as a defendant on a
respondeat superior theory.

(c)

In the complaint's text, other prison personnel are accused
of violating Plaintiff's civil rights, although they are not
named as defendants. Plaintiff must clarify whether they
are indeed defendants.

(d)

Plaintiff's conspiracy allegations are too vague.
Third Set of 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."
(10th Cir. 1991).

Hall v. Bellmon, 935 F.2d 1106, 1110

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).

2

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 supercedes original).
Second, the complaint must clearly state what each 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 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).

Further,

"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."

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Gallagher v.

Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787, at *11 (10th
Cir. Nov. 24, 2009).
Fourth, if Plaintiff's claims regard his current conditions
of confinement, he should get help from prison contract attorneys
to prepare initial pleadings.

And, Plaintiff is also 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 court filing fees.
The Court notes that Plaintiff's claims appear to involve
legal access.

As Plaintiff fashions his third amended complaint,

he should therefore keep in mind that it is well-recognized 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."

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

In

Bounds v. Smith, 430 U.S. 817 (1977), 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."

Id. at 828 (footnote omitted).

However,

to successfully assert a constitutional claim for denial of
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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."

Penrod v. Zavaras, 84

F.3d 1399, 1403 (10th Cir. 1996); Carper v. Deland, 54 F.3d 613,
616 (10th Cir. 1995).

In other words, a plaintiff must show

"that any denial or delay of access to the court prejudiced him
in pursuing litigation."
(10th Cir. 1996).

Treff v. Galetka, 74 F.3d 191, 194

Moreover, the non-frivolous litigation

involved must be "habeas corpus or civil rights actions regarding
current confinement."

Carper, 54 F.3d at 616; accord Lewis v.

Casey, 518 U.S. 343, 353-55 (1996).
Finally, as to Plaintiff's conspiracy claim, he "must
specifically plead 'facts tending to show agreement and concerted
action.'"

Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005)

(quoting Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th
Cir. 1983)).

Plaintiff has not met this responsibility in his

current amended complaint; his vague assertions that multiple
people were involved in denying him copies, and, therefore, a
conspiracy must be involved, are not enough.
detail to pursue this claim further.

5

He must assert more

ORDER
Based on the foregoing, 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.
(4) this is Plaintiff's final opportunity to submit a
complaint in this matter compliant with the Court's several
orders regarding the deficiencies of his original and amended
complaints.
DATED this 28th day of April, 2011.
BY THE COURT:

_____________________________
CHIEF JUDGE TED STEWART
United States District Court

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