Heitz v. West Jordan Police Department

Filing 9

MEMORANDUM DECISION that Plaintiff shall have thirty days from the date of this order to cure the deficiencies noted ; the Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide ; if Plaintiff fails to timely cur e the above deficiencies according to the instructions here this action will be dismissed without further notice ; denying without prejudice 4 Motion for Service of Process ; denying without prejudice 5 Motion to Appoint Counsel. Signed by Judge Ted Stewart on 02/25/2013. (asp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

LEONARD JOSEPH HEITZ, III,
Plaintiff,
v.

ORDER TO AMEND DEFICIENT
COMPLAINT, & MEMORANDUM
DECISION
Case No. 2:12-CV-973 TS

WEST JORDAN POLICE DEPARTMENT,

District Judge Ted Stewart

Defendant.

Before the Court is pro se Plaintiff Leonard Joseph Heitz,
III’s Motion for Service of Process1 and Motion to Appoint
Counsel.2

Reviewing the Complaint under 28 U.S.C. § 1915, the

Court determines that it is deficient. The Court will therefore
deny both Motions without prejudice and order Plaintiff to cure
the deficiencies in the Complaint.
Deficiencies in Complaint
Complaint:
(a)

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

(b)

does not identify an affirmative link between West Jordan
Police Department and the violation of Plaintiff’s civil
rights.

1

Docket No. 4.

2

Docket No. 5.

(c)

states a claim against West Jordan Police Department, in
violation of the municipal-liability doctrine (see below).
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."3

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."4
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

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).
5

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

2

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 these points when refiling his
complaint:

First, 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 Second, subordinate
agencies of cities are not separate legal entities with capacity
to sue or be sued.10

Thus, the Court construes Plaintiff's claim

against West Jordan Police Department as a claim against West
Jordan City itself.
To establish the liability of municipal entities, such as
West Jordan City, under § 1983, "a plaintiff must show (1) the
existence of a municipal custom or policy and (2) a direct causal

6

Id. at 1110.

7

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

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 Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir. 1992) (stating
sheriff's and police departments are not usually considered legal entities
subject to suit under § 1983).

3

link between the custom or policy and the violation alleged."11
Municipal entities cannot be held liable under § 1983 based on
the doctrine of respondeat superior.12
Plaintiff has not so far established a direct causal link
between his alleged injuries and any custom or policy of West
Jordan City.

Thus, the Court concludes that Plaintiff's Amended

Complaint, as it stands, appears to fail to state claims against
West Jordan City.
Motion to Appoint Counsel
Plaintiff moves for appointed counsel.
constitutional right to counsel.13

Plaintiff has no

However, the Court may in its

discretion appoint counsel for indigent plaintiffs.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
11

Jenkins v. Wood, 81 F.3d 988, 993-94 (10th Cir. 1996) (citing City of
Canton v. Harris, 489 U.S. 378, 385 (1989)).
12

See Cannon v. City and County of Denver, 998 F.2d 867, 877 (10th Cir.
1993); see also Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 694
(1978).
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).
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).

4

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

motions 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.
(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.

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.

5

(4) Plaintiff's Motion to Appoint Counsel (Docket No. 5) is
DENIED WITHOUT PREJUDICE; 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.
(5) Plaintiff's Motion for Service of Process (Docket No.
4)is DENIED WITHOUT PREJUDICE.
file to be served.

There is no valid complaint on

Also, if Plaintiff files an amended

complaint, the Court will, on its own, review the amended
complaint and determine whether to order service.17
is needed by Plaintiff to trigger that process.
DATED this 25th day of February, 2013.
BY THE COURT:

_______________________________
CHIEF JUDGE TED STEWART
United States District Court

17

See 28 U.S.C.S. § 1915A (2012).

6

No request