Fleming v. Clark et al

Filing 15

ORDER DISMISSING DEFENDANTS AND SERVING REMAINING DEFENDANTS- IT IS HEREBY ORDERED that:(1) Defendants Turley, Clark, Anderson, Casper, and John Does, and the claim about denied grievances, are DISMISSED. (2) The USMS shall serve a completed summons, a copy of the Complaint and a copy of this Order upon the above-listed remaining defendants. (3) Within twenty days of service, Defendants must file an answer or motion to dismiss and proposed order, as stated above. (4) If filing (on exhaus tion or any other basis) a Martinez report with a summary judgment motion and proposed order, Defendants must do so within sixty days of filing their answer(s). (5) If served with a Martinez report and a summary judgment motion or motion to dismiss, Plaintiff may file a response within thirty days. (6) Summary-judgment motion deadline is sixty days from filing of answer. Signed by Judge Dale A. Kimball on 3/22/10. (mas)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH _________________________________________________________________ ) ORDER DISMISSING DEFENDANTS ) AND SERVING REMAINING Plaintiff, ) DEFENDANTS ) v. ) Case No. 2:09-CV-1038 DAK ) STEVE TURLEY et al., ) District Judge Dale Kimball ) Defendants. ) _________________________________________________________________ CARL STANLEY FLEMING, Plaintiff/inmate, Carl Stanley Fleming, filed a pro se civil rights complaint, see 42 U.S.C.S. § 1983 (2010), proceeding in forma pauperis, see 28 id. 1915. The Court now screens his

complaint, under the standard that any claims in a complaint filed in forma pauperis must be dismissed if they are frivolous, malicious or fail to state a claim upon which relief may be granted. See id. §§ 1915-1915A. ANALYSIS 1. Claim Plaintiff names as defendants Wardens Turley and Clark, Captain Coulter, Officers Johnson, Kennedy, McConnell, and James, Caseworker George, Grievance Officers Tom Anderson and Billie Casper, contract attorney Mike Otto, Property Officer Anna Carlson, and John Does. He alleges unconstitutional confiscation

of his legal materials, excessive force, retaliation for his grievances, denial of his grievances, and denial of legal access.

2. Grounds for Sua Sponte Dismissal In evaluating the propriety of dismissing claims for failure to state a claim upon which relief may be granted, this Court takes all well-pleaded factual assertions as true and regards them in a light most advantageous to the plaintiff. Ridge at Red

Hawk L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). Dismissal is appropriate when, viewing those facts as true, the plaintiff has not posed a "plausible" right to relief. See Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). "The burden

is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." 556). Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at

When a civil rights complaint contains "bare assertions,"

involving "nothing more than a 'formulaic recitation of the elements' of a constitutional . . . claim," the Court considers those assertions "conclusory and not entitled to" an assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009) In other words, "the mere

(quoting Twombly, 550 U.S. at 554-55).

metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe this plaintiff has a reasonable likelihood of mustering factual support for these claims." Red Hawk, 493 F.3d at 1177 (italics in original). 2

This Court must construe these pro se "'pleadings liberally,' applying a less stringent standard than is applicable to pleadings filed by lawyers. Th[e] court, however, will not

supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citations omitted). In the Tenth Circuit, this means that if

this Court can reasonably read the pleadings "to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." 1991). Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

Still, it is not "the proper function of the district

court to assume the role of advocate for the pro se litigant." Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam)). Dismissing claims "without affording the

plaintiff notice or an opportunity to amend is proper only 'when it is patently obvious that plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile." Curley v. Perry, 246 F.3d 1278,

1281-82 (10th Cir. 2001) (quoting Hall, 935 F.2d at 1110 (additional quotation marks omitted)).

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3. Respondeat Superior 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)). Plaintiff cannot name an entity or individual as a See Mitchell v.

defendant based solely on supervisory position.

Maynard, 80 F.3d 1433, 1441, (10th Cir. 1996) (stating supervisory status alone is insufficient to support liability under § 1983). Because Plaintiff has done nothing to

affirmatively link Defendants Turley or Clark to these incidents, but has instead identified them merely as supervisors, Plaintiff's claims against Turley and Clark may not survive this screening. Turley and Clark are thus dismissed as defendants. 4. Defendants Denying Grievances "[D]enial 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 4

*11 (10th Cir. Nov. 24, 2009).

Under this law, Defendants Tom

Anderson and Billie Casper, along with the claim regarding denial of grievances, are dismissed. 5. John Does John Does are inappropriate defendants and are thus dismissed. Plaintiff must either specifically name or describe

with particularity each defendant and link each defendant to violation of his constitutional rights. ORDER FOR SERVICE OF PROCESS ON REMAINING DEFENDANTS Based on review of the Complaint, the Court concludes that official service of process is warranted on the remaining defendants. The United States Marshals Service (USMS) is

directed to serve a properly issued summons and a copy of Plaintiff's Complaint, along with this Order, upon the following Utah Department of Corrections (UDOC) defendants: Captain Mel Coulter Officer Darwin Johnson Officer Troy Kennedy Officer Randell McConnell Officer Clayton James Caseworker George Contract Attorney Mike Otto Property Officer Anna Carlson Once served, Defendants shall respond to the summons in one of the following ways: (A) If Defendants wish to assert the affirmative defense of Plaintiff's failure to exhaust administrative remedies in a

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grievance process, Defendants must, (i) file an answer, within twenty days of service; (ii) within sixty days of filing an answer, prepare and file a Martinez report limited to the exhaustion issue1; (iii) within sixty days of filing an answer, file a separate summary judgment motion, with a supporting memorandum; and (iv) within sixty days of filing an answer, submit a proposed order for dismissing the case based upon Plaintiff's failure to exhaust, in word processing format, to: [e-mail]. (B) If Defendants choose to challenge the bare allegations of the complaint, Defendants shall, within twenty days of

1 See M a r t i n e z v. Aaron, 570 F.2d 317 (10th Cir. 1978) (approving d i s t r i c t court's practice of ordering prison administration to prepare report t o be included in pleadings in cases when prisoner has filed suit alleging c o n s t i t u t i o n a l violation against institution officials). I n Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987), the Tenth Circuit e x p l a i n e d the nature and function of a Martinez report, saying: Under the Martinez procedure, the district judge or a U n i t e d States magistrate [judge] to whom the matter h a s been referred will direct prison officials to r e s p o n d in writing to the various allegations, s u p p o r t i n g their response by affidavits and copies of i n t e r n a l disciplinary rules and reports. The purpose o f the Martinez report is to ascertain whether there i s a factual as well as a legal basis for the p r i s o n e r ' s claims. This, of course, will allow the c o u r t to dig beneath the conclusional allegations. These reports have proved useful to determine whether t h e case is so devoid of merit as to warrant dismissal w i t h o u t trial. I d . at 1007.

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service, file a motion to dismiss based on Federal Rule of Civil Procedure 12(b)(6), and submit a proposed order for dismissing the case, in word processing format, to: [e-mail]. (C) If Defendants choose not to rely on the defense of failure to exhaust and wish to pierce the allegations of the complaint, Defendants must, (i) file an answer, within twenty days of service; (ii) within sixty days of filing an answer, prepare and file a Martinez report addressing the substance of the complaint; (iii) within sixty days of filing an answer, file a separate summary judgment motion, with a supporting memorandum; and (iv) within sixty days of filing an answer, submit a proposed order for dismissing the case based upon the summary judgment motion, in word processing format, to: [e-mail]. Plaintiff is notified that if Defendants move for summary judgment Plaintiff may not rest upon the mere allegations in the complaint. Instead, as required by Federal Rule of Civil

Procedure 56(e), to survive a motion for summary judgment Plaintiff must allege specific facts, admissible in evidence, showing that there is a genuine issue remaining for trial.

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ORDER Accordingly, IT IS HEREBY ORDERED that: (1) Defendants Turley, Clark, Anderson, Casper, and John Does, and the claim about denied grievances, are DISMISSED. (2) The USMS shall serve a completed summons, a copy of the Complaint and a copy of this Order upon the above-listed remaining defendants. (3) Within twenty days of service, Defendants must file an answer or motion to dismiss and proposed order, as stated above. (4) If filing (on exhaustion or any other basis) a Martinez report with a summary judgment motion and proposed order, Defendants must do so within sixty days of filing their answer(s). (5) If served with a Martinez report and a summary judgment motion or motion to dismiss, Plaintiff may file a response within thirty days. (6) Summary-judgment motion deadline is sixty days from filing of answer. DATED this 22nd day of March, 2010. BY THE COURT:

______________________________ JUDGE DALE A. KIMBALL United States District Court

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