Tijerina v. Patterson et al

Filing 11

ORDER TO AMEND DEFICIENT COMPLAINT & MEMORANDUM DECISION. It is hereby ordered: Plaintiff must within thirty days cure the deficiencies noted above. The Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide. If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. Signed by Judge David Nuffer on 10/31/2012. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
_________________________________________________________________
) ORDER TO AMEND DEFICIENT
) COMPLAINT, & MEMORANDUM
Plaintiff,
) DECISION
)
v.
) Case No. 2:12-CV-758 DN
)
TOM PATTERSON et al.,
) District Judge David Nuffer
)
Defendants.
)
_________________________________________________________________
DAN HENRY TIJERINA SR.,

Plaintiff, inmate Dan Henry Tijerina Sr., 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
deficiencies before further pursuing his claims.
Deficiencies in Complaint
The currently filed Complaint:
(a)

does not state a proper legal-access claim (see below).

(b)

is not on a proper court form, as required.

(c)

uses an incorrect caption (i.e., State of Utah Third
District Court).

(d)

may not ask for relief for other inmates--only for Plaintiff
himself.

(e)

alleges he is short on paper; however, Plaintiff's complaint
is repetitive and much too wordy, using about fourteen
pages, where perhaps five or so would have done.

(f)

appears to state claims based on conditions of current
confinement; however, the complaints were 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
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."
added.)

(Emphasis

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

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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--typically, a named government employee--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, 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).

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Fourth, "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).
Fifth, the Court notes that Plaintiff's claim 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 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 or resources
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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."
Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996).

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).
ORDER
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.

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(3) If Plaintiff fails to timely cure the above deficiencies
according to this Order's instructions, this action will be
dismissed without further notice.
DATED this 31st day of October, 2012.
BY THE COURT:

_____________________________
JUDGE DAVID NUFFER
United States District Court

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