Jackson v. Soper et al
ORDER to AMEND DEFICIENT COMPLAINT and MEMORANDUM DECISION denying 7 Motion to Appoint Counsel ; denying 8 Motion for Service of Process (Prisoner). 1) Plaintiff shall have thirty days from the date of this order to cure the deficiencies noted above. 2) The Clerks 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. See order for details. Signed by Judge Clark Waddoups on 2/8/2012. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
LAWRENCE MARSHALL JACKSON,
ORDER TO AMEND DEFICIENT
COMPLAINT & MEMORANDUM
Case No. 2:11-CV-68 CW
STEVEN TURLEY et al.,
District Judge Clark Waddoups
Plaintiff, Lawrence Marshall Jackson, an inmate at Utah
State Prison, filed this pro se civil rights suit.1
the complaint under § 1915A, the Court has determined that
Plaintiff's complaint is deficient as described below.
Deficiencies in Complaint
possibly inappropriately alleges civil rights violations
against certain defendants on a respondeat superior theory.
identifies other possible defendants in other documents that
are not named in the complaint caption or the complaint
improperly names Utah State Prison (USP) as a defendant,
though it is not an independent legal entity that can sue or
does not identify an affirmative link between USP and the
violation of Plaintiff's civil rights.
See 42 U.S.C.S. § 1983 (2012).
should incorporate fully any claims suggested in all
Plaintiff's other documents filed in this case, so that it
is unnecessary to refer to other documents to decipher the
should state all claims in the complaint itself instead of
referring to numerous "supplimental [sic] pages."
has claims regarding 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."2
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
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
Fed. R. Civ. P. 8(a).
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).
claim on which relief can be granted."4
Moreover, "it is not the
proper function of the Court to assume the role of advocate for a
pro se litigant."5
Thus, the Court cannot "supply
additional facts, [or] construct a legal theory for plaintiff
that assumes facts that have not been pleaded."6
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.7
complaint must clearly state what each individual defendant did
to violate Plaintiff's civil rights.8
"To state a claim, a
complaint must 'make clear exactly who is alleged to have done
what to whom.'"9
Third, Plaintiff cannot name someone as a
defendant based solely on his or her supervisory position.10
Hall v. Bellmon, 935 F.2d 1106, 1009 (10th Cir. 1991).
Id. at 1110.
Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989).
See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (stating
amended complaint supercedes original).
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).
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)).
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, as he has, will be restricted from filing future
lawsuits without prepaying fees.
Finally, regarding the fact that claims have been made
against a state entity, 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
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
Motion for Appointed Counsel
Plaintiff moves for appointed counsel.
constitutional right to counsel.13
Plaintiff has no
However, the Court may in its
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)).
See id. at *9.
See Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995); Bee v. Utah
State Prison, 823 F.2d 397, 399 (10th Cir. 1987).
discretion appoint counsel for indigent inmates.14
is upon the applicant to convince the court that there is
sufficient merit to his claim to warrant the appointment of
When deciding whether to appoint counsel, the district court
should consider a variety of factors, "including 'the merits of
the litigant's claims, the nature of the factual issues raised in
the claims, the litigant's ability to present his claims, and the
complexity of the legal issues raised by the claims.'"16
Considering the above factors, the Court concludes here that, at
this time, Plaintiff's claims may not be colorable, the issues in
this case are not complex, and Plaintiff is not at this time too
incapacitated or unable to adequately function in pursuing this
Thus, the Court denies for now Plaintiff's motion for
IT IS HEREBY ORDERED that:
(1) Plaintiff shall have thirty days from the date of this
order to cure the deficiencies noted above.
See 28 U.S.C.S. § 1915(e)(1) (2012); Carper, 54 F.3d at 617; Williams
v. Meese, 926 F.2d 994, 996 (10th Cir. 1991).
McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting
Williams, 926 F.2d at 996); accord McCarthy, 753 F.2d at 838-39.
(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.
(4) Plaintiff's motion for appointed counsel is DENIED17;
however, if, after the case develops further, it appears that
counsel may be needed or of specific help, the Court will ask an
attorney to appear pro bono on Plaintiff's behalf.
(5) Plaintiff's motion for service of process is denied18;
however, should an amended complaint be filed and, upon renewed
screening, it appears that this case has merit and states a claim
upon which relief may be granted, the Court may order service of
(See Docket Entry # 7.)
(See Docket Entry # 8.)
(6) Plaintiff's motion for change of venue is DENIED.19
Plaintiff has not provided a reasoned analysis why such an action
would prove necessary.
DATED this 8th day of February, 2012.
BY THE COURT:
JUDGE CLARK WADDOUPS
United States District Court
(See Docket Entry # 16.)
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