Walker v. Utah Department of Corrections et al

Filing 14

ORDER TO AMEND DEFICIENT COMPLAINT & MEMORANDUM DECISION- 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 6/23/2011. (mas)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

JOSEPH WAYNE WALKER,

ORDER TO AMEND DEFICIENT
COMPLAINT & MEMORANDUM
DECISION

Plaintiff,
v.

Case No. 2:10-CV-1155 CW

UTAH DEP'T OF CORRS. et al.,

District Judge Clark Waddoups

Defendants.

Plaintiff, Joseph Wayne Walker, an inmate at Central Utah
Correctional Facility, filed this pro se civil rights suit.
42 U.S.C.S. § 1983 (2011).

See

Reviewing the complaint under §

1915A, 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 an not independent legal entity that
can sue or be sued.

(b)

does not identify an affirmative link between each of the
named defendants and the violation of Plaintiff's civil
rights.

(c)

has claims possibly underlying current confinement; however,
the complaint was not submitted through contract attorneys.
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
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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, 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.
Finally, regarding the fact that claims have been made
against a state agency, generally, the Eleventh Amendment
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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)
(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 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,

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(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 June, 2011.
BY THE COURT:
_____________________________
JUDGE CLARK WADDOUPS
United States District Court

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