Payne v. Herman et al
Filing
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ORDER TO AMEND DEFICIENT AMENDED COMPLAINT re 11 Amended Complaint filed by Paul Richard Payne. Defendant shall have thirty (30) days from the date of this order to cure the deficiencies noted in this order. If Plaintiff fails to timely cure the deficiencies according to the instructions this action will be dismissed without further notice. Signed by Judge Dee Benson on 6/20/2011. (rlr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
PAUL RICHARD PAYNE,
ORDER TO AMEND DEFICIENT
AMENDED COMPLAINT
Plaintiff,
v.
Case No. 2:10-CV-684 DB
BRYANT HERMAN et al.,
District Judge Dee Benson
Defendants.
Plaintiff, Paul Richard Payne, an inmate at Utah State
Prison, filed this pro se civil rights suit.
1983 (2011).
See 42 U.S.C.S. §
Plaintiff was allowed to proceed in forma pauperis.
See 28 id. 1915.
Reviewing the complaint under § 1915(e), the
Court determined that Plaintiff's complaint was deficient and
ordered him to cure the deficiencies.
Plaintiff has now filed an
amended complaint, which, upon evaluation, the Court has
determined to be similarly deficient.
Deficiencies in Amended Complaint
Amended Complaint:
(a)
possibly inappropriately alleges civil rights violations
based on denied grievances.
(b)
does not clearly identify each named defendant, as John Does
must each be individually numbered and described in detail.
(c)
appears to inappropriately allege civil rights violations
against prison administrators on a respondeat superior
theory.
(d)
has claims appearing to be based on conditions of current
confinement; however, the complaint was not submitted
through contract attorneys.
Repeated General 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
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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
someone as a defendant based solely on his or her 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).
And, fourth, "denial of a
grievance, by itself without any connection to the violation of
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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).
Finally, 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.
ORDER
IT IS HEREBY ORDERED that:
(1) Plaintiff shall have THIRTY 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; and,
(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 20th day of June, 2011.
BY THE COURT:
_____________________________
JUDGE DEE BENSON
United States District Court
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