Yoder v. Kirkpatrick et al

Filing 11

ORDER DISMISSING DEFENDANTS AND SERVING REMAINING DEFENDANTS- The United States Marshals Service shall serve a summons, a copy of Plaintiffs complaint, and a copy of this Order upon Defendants Trudy Short, Kerry Galetka, Tom Anderson, Brandon Downs, Bryant Herman, Clay Cawley, Jeremy Etherington, Paul Kirkpatrick, Paula Cook, Richard Brown, Dirk Witkamp, Lowell Clark, Blake Nielsen. Thomas Patterson; Rex Talbot; Steven Turley; Anna Lee Carlson and Billie Casper terminated. See ORDER for details. Signed by Judge Clark Waddoups on 4/23/10. (mas)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH _________________________________________________________________ ) ORDER DISMISSING DEFENDANTS ) AND SERVING REMAINING Plaintiff, ) DEFENDANTS ) v. ) Case No. 2:10-CV-257 CW ) PAUL KIRKPATRICK et al., ) District Judge Clark Waddoups ) Defendants. ) _________________________________________________________________ MICHAEL W. YODER, Plaintiff/inmate, Michael W. Yoder, 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. DISMISSAL ORDER 1. Claims Plaintiff names as defendants Utah Department of Corrections (UDOC) personnel Paul Kirkpatrick, Paula Cook, Dirk Witkamp, Thomas Patterson, Lowell Clark, Steven Turley, Blake Nielsen, Richard Brown, Trudy Short, Kerry Galetka, Billie Casper, Tom Anderson, Brandon Downs, Bryant Herman, Jeremy Etherington, Clay Cawley, Anna Lee Carlson, Rex Talbot, B. Doe and John Does. alleges that because he publicly announced a situation that embarrassed prison officials, they retaliated by firing him from He

his prison job, entering "cautions" on his O-track, filing false "disciplinaries," putting him on suicide watch, obstructing his mail and legal access, placing him in more restrictive housing, suspending his grievance privileges, allowing harassment, and filing false reports with the Utah Board of Pardons and Parole (BOP). 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) 2

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

In other words, "the mere

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).

This Court must construe 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 3

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)). 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 may not 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 Thomas Patterson and Steven Turley to these incidents, but has instead identified them merely as supervisors, Plaintiff's claims against Patterson and Turley may 4

not survive this screening. dismissed as defendants.

Patterson and Turley are thus

Further, no specific allegations are made against Anna Lee Carlson or Rex Talbot. So, no affirmative link exists between They are

them and the violation of Plaintiff's civil rights. both therefore dismissed as well. 4. Defendant 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 *11 (10th Cir. Nov. 24, 2009). dismissed. 5. John Does John Does are inappropriate defendants and are thus dismissed. Plaintiff must either specifically name or describe Under this law, Billie Casper, is

with particularity each defendant and link each defendant to violation of his constitutional rights. ORDER FOR SERVICE OF PROCESS ON REMAINING DEFENDANTS 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 UDOC defendants: 5

Paul Kirkpatrick (to answer claims that, to retaliate, he fired Plaintiff from his job, issued O-track cautions that Plaintiff could never work again in Utah Corrections Industries, and lodged a specious "disciplinary") Paula Cook (to answer claims that, to retaliate, she fired Plaintiff from his job and lodged a specious "disciplinary") Dirk Witkamp (to answer claims that, to retaliate, he fired Plaintiff from his job, issued invalid O-track cautions, wrongly put Plaintiff on suicide watch, lodged specious "disciplinaries," and obstructed Plaintiff's mail and legal access) Lowell Clark (to answer claim that he ordered a retaliatory housing transfer for Plaintiff) Blake Nielsen (to answer claim that, to retaliate, he filed a false report to the BOP designed to keep Plaintiff from being awarded parole) Richard Brown (to answer claim that, to retaliate, he lodged a specious "disciplinary" against Plaintiff) Trudy Short (to answer claim that, to retaliate, she obstructed Plaintiff's mail and legal access) Kerry Galetka (to answer claim that, to retaliate, she obstructed Plaintiff's mail and legal access) Tom Anderson (to answer claim that, to retaliate, he denied all Plaintiff's grievances and suspended his grievance privileges) Brandon Downs (to answer claim that, to retaliate, he filed a false report to the BOP designed to keep Plaintiff from being awarded parole) Bryant Herman (to answer claims that, to retaliate, he wrongly put Plaintiff on suicide watch, participated in transferring Plaintiff to more restrictive housing, allowed Plaintiff to be harassed, obstructed Plaintiff's mail and legal access, and filed a false report to the BOP designed to keep Plaintiff from being awarded parole)

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Jeremy Etherington (to answer claim that, to retaliate, he filed a false report to the BOP designed to keep Plaintiff from being awarded parole) Clay Cawley (to answer claim that, to retaliate, he obstructed Plaintiff's mail and legal access) 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 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

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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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 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

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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. ORDER Accordingly, IT IS HEREBY ORDERED that: (1) Defendants Patterson, Turley, Carlson, Talbot, Casper, and John Does 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 must file a response within thirty days. 9

(6) Summary-judgment motion deadline is sixty days from filing of answer. DATED this 23rd day of April, 2010. BY THE COURT:

______________________________ JUDGE CLARK WADDOUPS United States District Court

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