Todd v. Herbert et al

Filing 23

DISMISSAL ORDER & MEMORANDUM DECISION: It is hereby ordered that Plaintiff's complaint is DISMISSED, and this case is closed. Signed by Judge Ted Stewart on 10/29/2012. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________________________________________
) DISMISSAL ORDER &
) MEMORANDUM DECISION
Plaintiff,
)
) Case No. 2:12-CV-483 TS
v.
)
) District Judge Ted Stewart
GARY R. HERBERT et al.,
)
)
Defendants.
)
)
)
_________________________________________________________________
SHAYNE E. TODD,

Plaintiff/inmate, Shayne E. Todd, filed a pro se civilrights complaint, see 42 U.S.C.S. § 1983 (2012), proceeding in
forma pauperis, see 28 id. 1915.

His claims attack Defendants

Utah Governor Gary R. Herbert, former Utah Governor Jon M.
Huntsman, former Utah Governor Michael O. Leavitt, and current
and former Utah Board of Pardons and Parole (BOP) members Michael
R. Sibbett, Donald E. Blanchard, Curtis L. Garner, Cheryl Hansen,
Jesse Gallegos, Keith N. Hamilton, Clark A. Harms, Angela F.
Micklos, Robert S. Yeates, and Chyleen Arbon, and Jane and John
Does one through twenty-five, for violating the Utah Constitution
and the Federal Equal Protection Clause, and for illegally
conspiring together, in determining to deny Plaintiff parole in
his BOP hearings up to now.
The Court screens these claims under the standard that any
claims in a complaint filed in forma pauperis must be dismissed
if they are frivolous, malicious or fail to state a claim upon
which relief may be granted.

See id. §§ 1915-1915A.

ANALYSIS
1. Grounds for Sua Sponte Dismissal
In evaluating the propriety of dismissing a complaint for
failure to state a claim upon which relief may be granted, this
Court takes all well-pleaded factual assertions as true and
regards them in a light most advantageous to the plaintiff.
Ridge at Red Hawk L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th
Cir. 2007).

Dismissal is appropriate when, viewing those facts

as true, the plaintiff has not posed a "plausible" right to
relief.

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007); Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir.
2008).

"The burden is on the plaintiff to frame a 'complaint

with enough factual matter (taken as true) to suggest' that he or
she is entitled to relief."
Twombly, 550 U.S. at 556).

Robbins, 519 F.3d at 1247 (quoting
When a civil-rights complaint

contains "bare assertions," involving "nothing more than a
'formulaic recitation of the elements' of a constitutional . . .
claim," the Court considers those assertions "conclusory and not
entitled to" an assumption of truth.

Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1951 (2009) (quoting Twombly, 550 U.S. at 554-55).

In

other words, "the mere metaphysical possibility that some
plaintiff could prove some set of facts in support of the pleaded
claims is insufficient; the complaint must give the court reason
to believe that this plaintiff has a reasonable likelihood of
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mustering factual support for these claims."

Red Hawk, 493 F.3d

at 1177 (italics in original).
This Court must construe these pro se "'pleadings
liberally,' applying a less stringent standard than is applicable
to pleadings filed by lawyers.

Th[e] court, however, will not

supply additional factual allegations to round out a plaintiff's
complaint or construct a legal theory on a plaintiff's behalf."
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)
(citations omitted).

In the Tenth Circuit, this means that if

this Court can reasonably read the pleadings "to state a valid
claim on which the plaintiff could prevail, it should do so
despite the plaintiff's failure to cite proper legal authority,
his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements."
1991).

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

Still, it is not "the proper function of the district

court to assume the role of advocate for the pro se litigant."
Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir.
1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)
(per curiam)).

Dismissing the complaint "without affording the

plaintiff notice or an opportunity to amend is proper only 'when
it is patently obvious that the plaintiff could not prevail on
the facts alleged, and allowing him an opportunity to amend his
complaint would be futile.'"

Curley v. Perry, 246 F.3d 1278,

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1281-82 (10th Cir. 2001) (quoting Hall, 935 F.2d at 1110
(additional quotation marks omitted)).
2. Improper Defendants
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, 2009 U.S. App.

LEXIS 15944, at *4 (10th Cir. July 20, 2009) (unpublished)
(emphasis in original) (quoting Robbins, 519 F.3d at 1250).
Plaintiff cannot name an entity or individual as a defendant
based solely on 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).
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).
Based on this standard, Plaintiff has done nothing to
affirmatively link several of the defendants to a violation of
his constitutional rights, but has instead identified them merely
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as supervisors, at whatever level, and people who ignored or
denied letters of grievance.

Plaintiff's claims against them may

not survive this screening then.
thus dismissed:

The following defendants are

Governor Gary Herbert and former Governors Jon

Huntsman and Michael Leavitt.
Other defendants against whom Plaintiff has stated no
affirmative link to a constitutional violation are dismissed as
well:

Jane and John Does one through twenty-five.
3. Statute of Limitations

"Utah's four-year residual statute of limitations . . .
governs suits brought under section 1983."
F.3d 673, 675 (10th Cir. 1995).

Fratus v. DeLand, 49

Plaintiff's claims accrued when

"'facts that would support a cause of action are or should be
apparent.'"

Id. at 675 (citation omitted).

Plaintiff's claims

about anything occurring before May 14, 2008 are thus dismissed,
based on the statute of limitations.
4. Denial of Parole
Plaintiff argues that, in determining whether he should be
paroled, BOP members failed to adhere to equal-protection
principles found in the Federal Constitution and guarantees found
in the Utah Constitution.
Three things keep Plaintiff from moving past the screening
stage of his complaint here:
standard set forth above.

First, he has not met the pleading

He does nothing more than make "bare

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assertions."

Iqbal, 129 S. Ct. at 1951; see also Straley v. Utah

Bd. of Pardons, No. 08-4170, 2009 U.S. App. LEXIS 21309, at *17
(10th Cir. Sept. 28, 2009) (stating "bare equal protection claims
are simply 'too conclusory' to permit a proper legal analysis")
(citation omitted).
Second, he has not stated the violation of a federal
constitutional right.

After all, "[t]here is no constitutional

or inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence."

Greenholtz

v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979).
"Parole is a privilege," not a constitutional right.

See

Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir. 1992).
Furthermore, it is well established that the Utah parole statute
does not create a liberty interest entitling prisoners to federal
constitutional protection.
(10th Cir. 1994).

See Malek v. Haun, 26 F.3d 1013, 1016

Because Plaintiff has no substantive liberty

interest in parole under the Federal Constitution, he cannot in
this federal suit allege it was unconstitutional to deny him
parole.

See Olim v. Wakinekona, 461 U.S. 238, 250 (1983).

Therefore, the Court concludes that Plaintiff fails to state a
claim here, and any related claims are dismissed.
Finally, the Court also considers Plaintiff's arguments
about breach of Utah's constitutional requirements, presumably
based on Labrum v. Utah State Bd. of Pardons, 870 P.2d 902
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(1993).

Labrum is Utah law and is neither controlling nor

persuasive in this federal case.

It is well-settled that a

federal court may grant relief only for violations by state
actors of the Constitution or laws of the United States.

Estelle

v. McGuire, 502 U.S. 62, 68 (1991); Rose v. Hodges, 423 U.S. 19,
21 (1975).
relief.

Errors of state law do not constitute a basis for

Estelle, 502 U.S. at 67; Lewis v. Jeffers, 497 U.S. 764,

780 (1990).

Plaintiff thus has no valid argument here based on

asserted violation of the Utah Constitution.
6. Constitutionality of Utah's Indeterminate Sentencing Scheme
Plaintiff appears to attack Utah's indeterminate sentencing
scheme as unconstitutional.
succinctly stated.

"It is not," the Tenth Circuit has

Straley, 2009 U.S. App. LEXIS 21309, at *10.

This claim therefore also fails and is dismissed.
7. Conspiracy
Without any details, Plaintiff alleges that the defendants
have all conspired against him to keep him from being paroled.
In support of this argument, Plaintiff simply cites the BOP
defendants' decision to all vote in favor of denying him parole.
"'[W]hen a plaintiff attempts to assert the state action required
for a § 1983 action against private actors based on a conspiracy
with government actors, mere conclusory allegations with no
supporting factual averments are insufficient.'"

Anderson v.

Toomey, No. 08-4221, 2009 U.S. App. LEXIS 8655, at *4 (10th Cir.
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Apr. 21, 2009) (unpublished) (quoting Beedle v. Wilson, 422 F.3d
1059, 1073 (10th Cir. 2005)).

Instead, "the plaintiff must

specifically plead 'facts tending to show agreement and concerted
action.'"

Beedle, 422 F.3d at 1073 (quoting Sooner Prods. Co. v.

McBride, 708 F.2d 510, 512 (10th Cir. 1983)).

Plaintiff has not

come anywhere close to meeting this responsibility.

And, his

vague assertions that things are not going well for him and,
therefore, a conspiracy must be involved, do not make sense.

A

unanimous vote--by itself--is not tantamount to a conspiracy.

An

equally viable interpretation is that each BOP member heard the
same information about Plaintiff and determined individually that
he did not make a good parole prospect.

His conspiracy claim is

thus dismissed.
CONCLUSION
The Court concludes that Plaintiff's complaint fails to
state a claim upon which relief may be granted.
§ 1915(e)(2)(B)(ii) (2012).

See 28 U.S.C.S.

And, it would be futile to give him

another chance to amend his complaint.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff's complaint
is DISMISSED, and this case is CLOSED.
BY THE COURT:
DATED this 29th day of October, 2012.

_____________________________
CHIEF JUDGE TED STEWART
United States District Court

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