Brodzki v. Utah Attorney General
Filing
6
MEMORANDUM DECISION and Order Denying Motion for Service of Process. Signed by Judge Ted Stewart on 12/06/2011. (tls)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
ANTHONY BRODZKI,
Plaintiff,
MEMORANDUM DECISION AND
ORDER DENYING MOTION FOR
SERVICE OF PROCESS
vs.
UTAH ATTORNEY GENERAL,
Case No. 2:11-CV-277 TS
Defendant.
This matter comes before the Court to conduct the screening process set forth under 28
U.S.C. § 1915. Having reviewed the Complaint, the Court finds that it fails to state a claim.
I. BACKGROUND
Plaintiff, proceeding pro se, filed his Complaint in this matter on March 23, 2011.
Plaintiff was permitted to proceed in forma pauperis, but did not take any further action. On
November 17, 2011, the Court issued an Order to Show cause directing Plaintiff to respond and
inform the Court of the status of the case and his intentions to proceed. Plaintiff responded by
asking the Court to continue his case and to issue a summons. As Plaintiff is proceeding pro se,
the Court construes Plaintiff’s request as a Motion for Service of Process.
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II. STANDARD OF REVIEW
Under 28 U.S.C. § 1915(e)(2)(B)(ii), the Court may dismiss Plaintiff’s Complaint if it
fails to state a claim for which relief may be granted. However, “[d]ismissal of a pro se
complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot
prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.”1
When determining whether to dismiss for failure to state a claim under the IFP statute,
courts employ the standard set forth for motions to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6).2 In particular, courts “look to the specific allegations
in the complaint to determine whether they plausibly support a legal claim for relief.”3 “Rather
than adjudging whether a claim is ‘improbable,’ ‘[f]actual allegations [in a complaint] must be
enough to raise a right to relief above the speculative level.’”4 In addition, “[a] pro se litigant’s
pleadings are to be construed liberally and held to a less stringent standard than formal pleadings
drafted by lawyers.”5
III. DISCUSSION
Plaintiff’s Complaint is very brief, with the substantive allegations constituting only a
paragraph. Plaintiff alleges that “[t]he state patrol has impeded me, forced me to leave the state,
1
Perkins v. Kan. Dept. of Corrections, 165 F.3d 803, 806 (10th Cir. 1999).
2
See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).
3
Alvarado v. KOB–TV, LLC, 493 F.3d 1210, 1215 n. 2 (10th Cir. 2007).
4
Kay, 500 F.3d at 1218 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
5
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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on recent visits, called me on My cell phone and told me that I was an undocumented pedophile
and pulled my penis out in public place and was not welcome in the state.”6 Plaintiff alleges that
certain unnamed individuals are harassing him. Plaintiff makes further unclear allegations
concerning back taxes. Plaintiff seeks to bring a claim under 42 U.S.C. § 1983 and requests
damages of $5,000,000.
Reviewing these allegations, the Court finds that they fall well short of what is required to
set out a plausible § 1983 claim. “Plaintiffs alleging a violation of § 1983 must demonstrate they
have been deprived of a right secured by the Constitution and the laws of the United States, and
that the defendants deprived them of this right acting under color of law.”7 Plaintiff has not
alleged sufficient facts showing the deprivation of a constitutional rights, nor has he identified
any particular person who, acting under the color of law, allegedly deprived him of any
constitutional right. Rather, Plaintiff’s allegations are precisely the type of vague and conclusory
allegations the Supreme Court has rejected. Therefore, the Court finds that Plaintiff has failed to
state a claim.
As Plaintiff is proceeding pro se, however, the Court will afford Plaintiff the opportunity
to amend his Complaint. Plaintiff is informed that he must provide sufficient allegations to state
a plausible claim that he has been deprived of a right secured by the Constitution and the laws of
the United States and must further identify the individuals involved in that alleged deprivation.
6
Docket No. 3 at 2.
7
Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1125 (10th Cir. 2000) (internal
quotation marks omitted)
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IV. CONCLUSION
It is therefore
ORDERED that Plaintiff’s Motion for Service of Process (Docket No. 5) is DENIED.
Plaintiff is ordered to amend his Complaint within thirty (30) days of this Order to remedy the
problems identified. Failure to do so may result in dismissal of this action.
DATED December 6, 2011.
BY THE COURT:
_____________________________________
TED STEWART
United States District Judge
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