Cox v. Salt Lake County Jail et al
Filing
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MEMORANDUM DECISION denying 2 Motion to Appoint Counsel; denying 3 Motion for Service of Process; denying 6 Motion for Service of Process (Prisoner); denying 7 Motion for Plaintiffs to be moved to a facility that provides access to a law library; denying 11 Motion requesting relief from retaliation. The Clerks Office shall mail Plaintiff a copy of the Pro Se Litigant Guide. Signed by Judge Clark Waddoups on 2/10/2012. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________________________________________
TERRY COX,
) ORDER TO AMEND DEFICIENT
) COMPLAINT & MEMORANDUM
Plaintiff,
) DECISION
)
v.
) Case No. 2:11-CV-312 CW
)
SALT LAKE COUNTY JAIL et al.,
) District Judge Clark Waddoups
)
Defendants.
)
_________________________________________________________________
Plaintiff, inmate Terry Cox, filed this pro se civil rights
suit, see 42 U.S.C.S. § 1983 (2012), in forma pauperis, see 28
id. § 1915.
The Court now screens the complaint and orders
Plaintiff to file an amended complaint to cure continuing
deficiencies before further pursuing his claims.
Deficiencies in Complaint
Complaint:
(a) improperly names Salt Lake County Jail as a defendant,
though it is not an independent legal entity that can sue or
be sued.
(b) does not state a proper legal-access claim.
Instructions to Plaintiff
Rule 8 of the Federal Rules of Civil Procedure requires a
complaint to contain "(1) a short and plain statement of the
grounds for the court's jurisdiction . . .; (2) a short and plain
statement of the claim showing that the pleader is entitled to
relief; and (3) a demand for the relief sought."
Rule 8's
requirements mean to guarantee "that defendants enjoy fair notice
of what the claims against them are and the grounds upon which
they rest."
TV Commc'ns Network, Inc. v ESPN, Inc., 767 F. Supp.
1062, 1069 (D. Colo. 1991).
Pro se litigants are not excused from complying with these
minimal pleading demands.
"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."
(10th Cir. 1991).
Hall v. Bellmon, 935 F.2d 1106, 1110
Moreover, it is improper for the Court "to
assume the role of advocate for a pro se litigant."
Id.
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 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 defendant
did to violate Plaintiff's civil rights.
See Bennett v. Passic,
545 F.2d 1260, 1262-63 (10th Cir. 1976) (stating personal
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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 an individual as a defendant
based solely on his or her supervisory position.
See Mitchell v.
Maynard, 80 F.2d 1433, 1441 (10th Cir. 1996) (stating supervisory
status alone does not support § 1983 liability).
Further,
"denial of a grievance, by itself without any connection to the
violation of constitutional rights alleged by plaintiff, does not
establish personal participation under § 1983."
Gallagher v.
Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787, at *11 (10th
Cir. Nov. 24, 2009).
The Court also notes that one of Plaintiff's claims involves
legal access.
As Plaintiff fashions his amended complaint, he
should therefore keep in mind that it is well-recognized that
prison inmates "have a constitutional right to 'adequate,
effective, and meaningful' access to the courts and that the
states have 'affirmative obligations' to assure all inmates such
access."
Ramos v. Lamm, 639 F.2d 559, 583 (10th Cir. 1980).
In
Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court expounded
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on the obligation to provide access to the Courts by stating "the
fundamental constitutional right of access to the courts requires
prison authorities to assist inmates in the preparation and
filing of meaningful legal papers by providing prisoners with
adequate law libraries or adequate assistance from persons
trained in the law."
Id. at 828 (footnote omitted & emphasis
added).
However, to successfully assert a constitutional claim for
denial of access to the courts, a plaintiff must allege not only
the inadequacy of the library or legal assistance furnished but
also "that the denial of legal resources hindered [the
plaintiff's] efforts to pursue a nonfrivolous claim."
Penrod v.
Zavaras, 84 F.3d 1399, 1403 (10th Cir. 1996) (emphasis added);
Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995).
In other
words, a plaintiff must show "that any denial or delay of access
to the court prejudiced him in pursuing litigation."
Galetka, 74 F.3d 191, 194 (10th Cir. 1996).
Treff v.
Moreover, the non-
frivolous litigation involved must be "habeas corpus or civil
rights actions regarding current confinement."
Carper, 54 F.3d
at 616; accord Lewis v. Casey, 518 U.S. 343, 353-55 (1996).
MOTIONS FOR APPOINTED COUNSEL AND SERVICE OF PROCESS
The Court first considers the motion for appointed counsel.
Plaintiff has no constitutional right to counsel.
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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).
However, the Court
may in its discretion appoint counsel for indigent inmates.
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).
"The burden is
upon the applicant to convince the court that there is sufficient
merit to his claim to warrant the appointment of counsel."
McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
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.'"
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.
Considering the above factors, the Court concludes here that (1)
it is not clear at this point that Plaintiff has asserted a
colorable claim; (2) the issues in this case are not complex; and
(3) Plaintiff is not incapacitated or unable to adequately
function in pursuing this matter.
Thus, the Court denies for now
Plaintiff's motion for appointed counsel.
Next, the Court denies for now Plaintiff's motions for
service of process.
The Court has yet to make a final
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determination whether to dismiss Plaintiff's complaint or order
it to be served upon Defendants.
See 28 U.S.C.S. § 1915A (2012).
Plaintiff need do nothing further to trigger this process.
ORDER
Based on the foregoing, IT IS HEREBY ORDERED:
(1) Plaintiff must within thirty days 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 this Order's instructions, this action will be
dismissed without further notice.
(4) Plaintiff's request for appointed counsel is DENIED,
(see Docket Entry # 2); however, if it later appears that counsel
may be needed or of specific help, the Court may ask an attorney
to appear pro bono on Plaintiff's behalf.
No further motions of
this nature are necessary.
(6) Plaintiff's motions for service of process are DENIED,
(see Docket Entry #s 3 & 6); however, if, upon further review, it
appears that this case has merit and states a claim upon which
relief may be granted, the Court may order service of process.
(7) Plaintiff's motions to be moved and for relief from
retaliation by jail employees are DENIED.
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(See Docket Entry #s 7
& 11.)
Having not heard from Plaintiff since May 16, 2011, when
it sounded like Plaintiff was in transitional housing, the Court
is unsure of Plaintiff's current location.
Plaintiff is welcome
to renew these motions if the issues still exist.
DATED this 10th day of February, 2012.
BY THE COURT:
_____________________________
JUDGE CLARK WADDOUPS
United States District Court
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