Nelder v. Bigelow et al

Filing 11

MEMORANDUM DECISION that Plaintiff shall have thirty days from the date of thisorder to cure the deficiencies noted in this order. If Plaintiff fails to timely cure the noted deficiencies according to the instructions here this action will be dismissed without further notice. Signed by Judge Dee Benson on 05/15/2012. (asp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

MICHAEL PAUL NELDER,

ORDER TO AMEND DEFICIENT
COMPLAINT, & MEMORANDUM
DECISION

Plaintiff,
v.

Case No. 2:12-CV-245 DB

WARDEN BIGELOW et al.,

District Judge Dee Benson

Defendants.

Plaintiff, Michael Paul Nelder, a prisoner at Central Utah
Correctional Facility, filed this pro se civil rights suit.1
Reviewing the complaint under § 1915A, the Court has determined
that Plaintiff's complaint is deficient as described below.
Deficiencies in Complaint
Complaint:
(a)

inappropriately alleges civil-rights violations against
defendant prison wardens on a respondeat-superior theory.

(b)

provides no affirmative link between violation of
Plaintiff's civil rights and the actions of Defendants.

(c)

has claims apparently regarding current confinement;
however, the complaint was apparently not drafted with the
help of contract attorneys.

1

See 42 U.S.C.S. § 1983 (2012).

Instructions to Plaintiff
Under Rule 8 of the Federal Rules of Civil Procedure a
complaint must 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

Rule 8(a)'s requirements are meant

to guarantee "that defendants enjoy fair notice of what the
claims against them are and the grounds upon which they rest."3
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."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

2

Fed. R. Civ. P. 8(a).

3

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).
4

Hall v. Bellmon, 935 F.2d 1106, 1009 (10th Cir. 1991).

5

Id. at 1110.

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facts, [or] construct a legal theory for plaintiff that assumes
facts that have not been pleaded."6
Plaintiff should consider these points when 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 or supplement.7

Second, the

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
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.

6

Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989).

7

See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (stating
amended complaint supercedes original).
8

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).
9

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)).
10

See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating
supervisory status alone is insufficient to support liability under § 1983).

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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.
DATED this 15th day of May, 2012.
BY THE COURT:

______________________________
JUDGE DEE BENSON
United States District Court

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