Eschler v. Utah Department of Corrections

Filing 10

ORDER to Amend Deficient 3 Complaint. Plaintiff has 30 days from the date of this order to cure the deficiencies noted in this order. The Clerk's Office shall mail plaintiff a copy of the Pro Se Litigant Guide. If plaintiff fails to timely cure the deficiencies this action will be dismissed without further notice. Signed by Judge Dale A. Kimball on 5/23/2011. (ce)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH STEVEN ESCHLER, ORDER TO AMEND DEFICIENT COMPLAINT Plaintiff, v. Case No. 2:10-CV-359 DAK UTAH DEP'T OF CORRS. et al., District Judge Dale A. Kimball Defendants. Plaintiff, Steven Eschler, filed this pro se civil rights suit. See 42 U.S.C.S. § 1983 (2011). proceed in forma pauperis. Plaintiff was allowed to See 28 id. 1915. Reviewing the complaint under § 1915(e)(2), the Court has determined that Plaintiff's complaint is deficient as described below. Deficiencies in Complaint Complaint: (a) improperly names Utah Department of Corrections (UDOC) as a defendant, though it is not an independent legal entity that can sue or be sued. (b) does not identify an affirmative link between UDOC and the violation of Plaintiff's civil rights. (c) appears to inappropriately allege civil rights violations against UDOC on a respondeat superior theory. 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 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 2 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 an individual or governmental entity as a defendant based solely on 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). Finally, regarding the fact that this claim has been made against a state agency, 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) 3 (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 has waived its immunity or that it 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. See id. at *9. 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. DATED this 23rd day of May, 2011. BY THE COURT: ____________________________ JUDGE DALE A. KIMBALL United States District Court 4

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