Walker v. Utah Department of Corrections et al

Filing 24

SECOND ORDER TO AMEND DEFICIENT AMENDED COMPLAINT; MEMORANDUM DECISION denying as moot 17 Motion for Service of Process (Prisoner); denying 20 Motion to Appoint Counsel; denying 23 Motion for consideration. Plaintiff has not shown that he ha s even tried to follow the Court's carefully articulated instructions specific to his case, fill in the blanks on proper court provided form. Plaintiff shall have THIRTY DAYS fromt eh date of this order to cure the deficiencies. The Clerks Office shall mail Plaintiff a copy of the Pro Se Litigant Guide. Signed by Judge Clark Waddoups on 2/28/2012. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

JOSEPH WAYNE WALKER,
Plaintiff,
v.

SECOND ORDER TO AMEND
DEFICIENT AMENDED COMPLAINT;
MEMORANDUM DECISION
Case No. 2:10-CV-1155 CW

ALFRED C. BIGELOW 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

In an Order entered December 19,

2011, reviewing the Amended Complaint under § 1915A, the Court
determined that Plaintiff's Amended Complaint is deficient as
described below.
Deficiencies in Amended Complaint
Complaint:
(a)

possibly inappropriately alleges civil rights violations
against certain defendants on a respondeat superior theory.

(b)

is not on a proper court-provided form.

(c)

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

(d)

has claims possibly underlying current confinement; however,
the complaint was not submitted through contract attorneys.

Plaintiff responded with a "Motion for Consideration," in
which he asserts that his lack of legal knowledge precludes him
from preparing an adequate second amended complaint. He also
states that the prison's contract attorneys have shown an
unwillingness to help him prepare this initial pleading--a proper
complaint.
Repeated 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
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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 any past 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
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position.

See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir.

1996) (stating supervisory status alone is insufficient to
support liability under § 1983).

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.
And, finally, Plaintiff's claims appear 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 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)).
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.

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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.
(4) Plaintiff's motion for consideration is DENIED.
Docket Entry # 23.)

(See

Plaintiff has not shown that he has even

tried to follow the Court's carefully articulated instructions
specific to his case--e.g., fill in the blanks on the proper
court-provided form.
(5) Plaintiff's second motion for appointed counsel is
DENIED, (see Docket Entry # 20), for the same reasons his
original motion for appointed counsel was denied, (see Docket
Entry # 3).
(6) Plaintiff's motion for service of process is DENIED as
moot.

(See Docket Entry # 17.)

No adequate complaint is on file

at this time to be served.
DATED this 28th day of February, 2012.
BY THE COURT:

_____________________________
JUDGE CLARK WADDOUPS
United States District Court

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