Eschler v. Utah Department of Corrections
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ORDER TO AMEND DEFICIENT
Case No. 2:10-CV-359 DAK
UTAH DEP'T OF CORRS. et al.,
District Judge Dale A. Kimball
Plaintiff, Steven Eschler, filed this pro se civil rights
See 42 U.S.C.S. § 1983 (2011).
proceed in forma pauperis.
Plaintiff was allowed to
See 28 id. 1915.
complaint under § 1915(e)(2), the Court has determined that
Plaintiff's complaint is deficient as described below.
Deficiencies in Complaint
improperly names Utah Department of Corrections (UDOC) as a
defendant, though it is not an independent legal entity that
can sue or be sued.
does not identify an affirmative link between UDOC and the
violation of Plaintiff's civil rights.
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).
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
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
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
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
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 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.
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
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