Stewart v. Wallace et al
Filing
13
MEMORANDUM DECISION & ORDER TO AMEND DEFICIENT COMPLAINT: Plaintiff shall have THIRTY DAYS from the date of this order to cure the deficiencies; if Plaintiff fails to timely cure the above deficiencies according to the instructions this action will b e dismissed without further notice; and, Plaintiff's motion for appointed counsel is DENIED; 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. Signed by Judge Dee Benson on 1/18/12. (jlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JESSE THOMAS STEWART,
MEMORANDUM DECISION & ORDER TO
AMEND DEFICIENT COMPLAINT
Plaintiff,
v.
Case No. 2:11-CV-505 DB
DR. R. DUNCAN WALLACE et al.,
District Judge Dee Benson
Defendants.
Plaintiff, Jesse Thomas Stewart, filed this pro se civil
rights suit.1
pauperis.2
Plaintiff was allowed to proceed in forma
Reviewing the complaint under § 1915(e), the Court
has determined that Plaintiff's complaint is deficient as
described below.
Deficiencies in Complaint
Complaint:
(a)
is not on a form acceptable to the Court.
(b)
is accompanied in the docket by supplemental documents that
appear to present possible other details, claims, and
defendants, aside from those found in the complaint, and
must be incorporated into the amended complaint to be
considered.
(c)
brings civil-rights claims against employees of Copper Hills
Youth Center (CHYC), without explaining how they are state
actors.
1
See 42 U.S.C.S. § 1983 (2012).
2
See 28 id. 1915.
(d)
names John Does (the "owner" and "director" of CHYC), when
their names are required to proceed further.
(e)
appears to bring all claims based on the invalid theory of
"respondeat superior."
(f)
has claims appearing 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 law libraries or 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)).
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."3
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."4
3
Fed. R. Civ. P. 8(a).
4
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).
2
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."5
Moreover, "it is not the
proper function of the Court to assume the role of advocate for a
pro se litigant."6
Thus, the Court cannot "supply
additional facts, [or] construct a legal theory for plaintiff
that assumes facts that have not been pleaded."7
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.8
Second, the
complaint must clearly state what each individual defendant did
to violate Plaintiff's civil rights.9
"To state a claim, a
complaint must 'make clear exactly who is alleged to have done
5
Hall v. Bellmon, 935 F.2d 1106, 1009 (10th Cir. 1991).
6
Id. at 1110.
7
Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989).
8
See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (stating
amended complaint supercedes original).
9
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).
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what to whom.'"10
Third, Plaintiff cannot name an individual as
a defendant based solely on his or her supervisory position,
otherwise known as a theory of respondeat superior.11
And,
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.
Finally, Plaintiff has possibly named private citizens as
defendants.
"[T]o prevail on a § 1983 claim alleging a
deprivation of constitutional rights, a plaintiff must show that
he was injured as a result of state action.
Thus, private
conduct, 'no matter how discriminatory or wrongful,' may not be
redressed by a § 1983 claim."12
Motion for Appointed Pro Bono Counsel
Plaintiff also moves for appointed counsel.
no constitutional right to counsel.13
Plaintiff has
However, the Court may in
10
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)).
11
See Mitchell v. Maynard, 80 F.3d 1433, 1441, (10th Cir. 1996) (stating
supervisory status alone is insufficient to support liability under § 1983).
12
Read v. Klein, No. 99-5058, 1001 U.S. App. LEXIS 334, at *13 (10th
Cir. Jan. 9, 2001) (citations omitted) (unpublished).
13
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).
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its discretion appoint counsel for indigent inmates.14
"The
burden is upon the applicant to convince the court that there is
sufficient merit to his claim to warrant the appointment of
counsel."15
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
matter.
Thus, the Court denies for now Plaintiff's motion for
appointed counsel.
ORDER
IT IS HEREBY ORDERED that:
(1) Plaintiff shall have THIRTY DAYS from the date of this
order to cure the deficiencies noted above;
14
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).
15
McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
16
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.
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(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; and,
(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.
DATED this 18th day of January, 2012.
BY THE COURT:
_____________________________
JUDGE DEE BENSON
United States District Court
17
(See Docket Entry # 9.)
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