Soto v. State of Utah et al

Filing 6

Order to Amend Deficient Complaint and MEMORANDUM DECISION. Signed by Judge Ted Stewart on 08/23/2012. (tls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

JOSE SOTO,

ORDER TO AMEND DEFICIENT
COMPLAINT, & MEMORANDUM
DECISION

Plaintiff,
v.

Case No. 2:12-CV-668 TS

STATE OF UTAH et al.,

District Judge Ted Stewart

Defendants.

Plaintiff, Jose Soto, 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 suggests civil-rights violations against
defendant prison warden on a respondeat-superior theory.

(b)

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

(c)

improperly names CUCF as a defendant, though it is not an
independent legal entity that can sue or be sued.

(d)

improperly names "State of Utah" as a defendant, though
there is no showing it has waived its governmental immunity
(see below).

1

See 42 U.S.C.S. § 1983 (2012).

(e)

mentions in the text of his complaint a potential defendant
who is not named in the caption.

(f)

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

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pro se litigant."5

Thus, the Court cannot "supply additional

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

5
6

Id. at 1110.
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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will be restricted from filing future lawsuits without prepaying
fees.
Finally, as to claims that have been made against the State,
generally, the Eleventh Amendment prevents "suits against a state
unless it has waived its immunity or consented to suit, or if
Congress has validly abrogated the state's immunity."11
Plaintiff asserts no basis for determining that the State has
waived its immunity or that it has been abrogated by Congress.
Because any claims against the State appear to be precluded by
Eleventh Amendment immunity, the Court believes it has no
subject-matter jurisdiction to consider them.12
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.

11

Ray v. McGill, No. CIV-06-0334-HE, 2006 U.S. Dist. LEXIS 51632, at *8
(W.D. Okla. July 26, 2006) (unpublished) (citing Lujan v. Regents of Univ. of
Cal., 60 F.3d 1511, 1522 (10th Cir. 1995); Eastwood v. Dep't of Corrs., 846
F.2d 627, 631 (10th Cir. 1988)).
12

See id. at * 9.

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(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 23rd day of August, 2012.
BY THE COURT:

______________________________
CHIEF JUDGE TED STEWART
United States District Court

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