Hunsaker v. Turley et al
Filing
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ORDER TO AMEND DEFICIENT AMENDED COMPLAINT- IT IS HEREBY ORDERED that: (1) Plaintiff shall have THIRTY 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; and, (3) if Plaintiff fails to timely cure the above deficiencies according to the instructions here this action will be dismissed without further notice. Signed by Judge Clark Waddoups on 6/20/2011. (mas)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
DAVID ERIC HUNSAKER,
ORDER TO AMEND DEFICIENT
AMENDED COMPLAINT
Plaintiff,
v.
Case No. 2:10-CV-710 CW
CLINT FRIEL et al.,
District Judge Clark Waddoups
Defendants.
Plaintiff, David Eric Hunsaker, an inmate at San Pete County
Correctional Facility, filed this pro se civil rights suit.
42 U.S.C.S. § 1983 (2011).
forma pauperis.
See
Plaintiff was allowed to proceed in
See 28 id. 1915.
Reviewing the original
complaint under § 1915(e), the Court determined that it was
deficient.
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)
does not clearly identify each named defendant, as John Does
must each be individually numbered and described in detail.
(b)
inappropriately alleges civil rights violations against
prison administrator on a respondeat superior theory.
(c)
"addendum" does not identify potential defendants who
allegedly violated Plaintiff's civil rights in February
2011.
(d)
possibly accuses other prison personnel of violating
Plaintiff's civil rights, although they are not named as
defendants. Plaintiff must clarify whether they are indeed
defendants.
(e)
is not on a form § 1983 complaint.
(f)
has claims appearing to be based on conditions of current
confinement; however, the complaint was apparently not
submitted using the legal help Plaintiff is entitled to by
his institution under the Constitution. See Lewis v. Casey,
518 U.S. 343, 356 (1996) (requiring prisoners be given
"'adequate law libraries or adequate assistance from persons
trained in the law' . . . to ensure that inmates . . . have
a reasonably adequate opportunity to file nonfrivolous legal
claims challenging their convictions or conditions of
confinement") (quoting Bounds v. Smith, 430 U.S. 817, 828
(1977) (emphasis added)).
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).
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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
entirely on its own and shall not refer to, or incorporate by
reference, any portion of the original complaint or the motion to
amend, filed August 18, 2010.
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).
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"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 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;
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(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 CLARK WADDOUPS
United States District Court
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