Butler v. Hill et al
Filing
28
ORDER TO AMEND DEFICIENT COMPLAINT - Plaintiff shall have thirty (30) days from the date of this order to cure the deficiencies noted in this order. If plaintiff fails to timely cure the deficiencies according to the instructions herein, this action will be dismissed without further notice. Signed by Judge Dee Benson on 6/14/2011. (rlr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JOHN BUTLER,
ORDER TO AMEND DEFICIENT
COMPLAINT
Plaintiff,
v.
Case No. 2:09-CV-629 DB
OFFICER JONATHAN HILL et al.,
District Judge Dee Benson
Defendants.
Plaintiff, John Butler, an inmate at Central Utah
Correctional Facility, filed this pro se civil rights suit.
42 U.S.C.S. § 1983 (2011).
forma pauperis.
See
Plaintiff was allowed to proceed in
See 28 id. 1915.
Reviewing the complaint under
§ 1915(e), the Court has determined that Plaintiff's complaint is
deficient as described below.
Deficiencies in Complaint
Complaint:
(a)
does not clearly identify each defendant, as John Does must
each be individually numbered and described in detail.
(b)
is not in proper form (resubmit using court forms, following
instructions in Pro Se Litigant Guide).
(c)
has claims possibly underlying current confinement; however,
the complaint was not submitted through contract attorneys.
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."
1106, 1009 (10th Cir. 1991).
Hall v. Bellmon, 935 F.2d
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
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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 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.
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
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filing future lawsuits without prepaying fees.
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 14th day of June, 2011.
BY THE COURT:
_____________________________
JUDGE DEE BENSON
United States District Court
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