Brooks v. Clerk of Third District Court

Filing 9

ORDER TO AMEND DEFICIENT COMPLAINT- IT IS HEREBY ORDERED that: (1) Plaintiff shall have THIRTY (30) DAYS from the date of this order to cure the deficiencies noted; (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 the instructions here, this action will be dismissed without further notice; and, (4) Plaintiff's motion for summary disposition is DENIED. Signed by Judge Tena Campbell on 04/06/10. (mas)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

VEAR LEROY BROOKS, Plaintiff, v. CLERK THIRD DIST. et al., Defendants.

ORDER TO AMEND DEFICIENT COMPLAINT Case No. 2:10-CV-1 TC District Judge Tena Campbell

Plaintiff Vear LeRoy Brooks, an inmate at the Utah State Prison, filed this pro se civil rights suit. § 1983 (2010). pauperis. See 42 U.S.C.S.

Plaintiff was allowed to proceed in forma Reviewing the complaint under

See 28 U.S.C.S. § 1915.

§ 1915(e), the court has determined that Plaintiff's complaint is deficient as described below. Deficiencies in Complaint The Complaint: (a) (b) is missing an original signature by Plaintiff. alleges claims appearing to be based on current confinement; however, the complaint was not submitted through contract attorneys. does not identify an affirmative link between the State of Utah and the alleged violation of Plaintiff's civil rights. does not specifically name the Third District court clerk.

(c) (d)

Instructions to Plaintiff Under Rule 8 of the Federal Rules of Civil Procedure, a complaint must 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 that assumes facts that have not been pleaded." 2 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 that 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 an

individual as a defendant based solely on his or her supervisory position. See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.

1996) (stating that 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. 3

Finally, generally, the Eleventh Amendment prevents "suits against a state unless it has waived its immunity or consented to suit, or if Congress has validly abrogated the state's immunity." Ray v. McGill, No. CIV-06-0334-HE, 2006 U.S. Dist. LEXIS 51632, at *8 (W.D. Okla. July 26, 2006) (unpublished) (citing Lujan v. Regents of Univ. of Cal., 60 F.3d 1511, 1522 (10th Cir. 1995); Eastwood v. Dep't of Corrs., 846 F.2d 627, 631 (10th Cir. 1988)). Plaintiff asserts no basis for determining that the State of Utah has waived its immunity or that such immunity has been abrogated by Congress. Because any claims against the State appear to be

precluded by Eleventh Amendment immunity, the Court believes it has no subject-matter jurisdiction to consider them. *9. See id. at

ORDER IT IS HEREBY ORDERED that: (1) Plaintiff shall have THIRTY (30) 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; (3) if Plaintiff fails to timely cure the above deficiencies according to the instructions here, this action will be dismissed without further notice; and, 4

(4) Plaintiff's motion for summary disposition is DENIED. (See Docket Entry # 6.) DATED this 6th day of April, 2010. BY THE COURT:

_____________________________ CHIEF JUDGE TENA CAMPBELL United States District Court

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