Losee v. Gallegos et al

Filing 7

ORDER TO AMEND DEFICIENT, AMENDED COMPLAINT; MEMORANDUM DECISION denying 4 Motion for leave to communicate with other inmates; denying 6 Motion for Service of Process (Prisoner). It is hereby ordered that: Plaintiff shall have THIRTY DAYS from the date of this order to cure the deficiencies noted above; The Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide; If Plaintiff fails to timely cure the above deficiencies according to the instructions here this action wi ll be dismissed without further notice; Plaintiffs motions for leave to communicate with other inmates and for service of process are DENIED as premature. A proper complaint has yet to be filed in this case. Moreover, discovery and service of process will be ordered as deemed necessary at the Court's discretion. The Court needs no further prompting from Plaintiff. Signed by Judge Tena Campbell on 11cv80. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

KARL GRANT LOSEE,

ORDER TO AMEND DEFICIENT
AMENDED COMPLAINT;
MEMORANDUM DECISION

Plaintiff,
v.

Case No. 2:11-CV-80 TC

C. GALLEGOS et al.,

District Judge Tena Campbell

Defendants.

Plaintiff, Karl Grant Losee, an inmate at Utah State Prison,
filed this pro se civil rights suit.
(2012).

See 42 U.S.C.S. § 1983

Reviewing the Amended Complaint under § 1915A, the Court

has 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.

(e)

is incongruent with the original complaint.

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

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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
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
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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;
(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 motions for leave to communicate with other
inmates and for service of process are DENIED as premature.
Docket Entry #s 4 & 6.)
in this case.

(See

A proper complaint has yet to be filed

Moreover, discovery and service of process will be

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ordered as deemed necessary at the Court's discretion.
needs no further prompting from Plaintiff.
DATED this 30th day of January, 2012.
BY THE COURT:

_____________________________
JUDGE TENA CAMPBELL
United States District Court

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The Court