Garza v. Turley et al
Filing
9
ORDER TO AMEND DEFICIENT COMPLAINT & MEMORANDUM DECISION: It is hereby ordered that: Plaintiff shall have thirty days from the date of this order to cure the deficiencies noticed above. The Clerks office shall mail Plaintiff a copy of the Prose Litigant Guide. If Plaintiff fails to timely cure the above deficiencies according to the instructions here this action will be dismissed without further notice. Signed by Judge Tena Campbell on 6/12/2013. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
GERARDO THOMAS GARZA,
Plaintiff,
v.
ORDER TO AMEND DEFICIENT
COMPLAINT, & MEMORANDUM
DECISION
Case No. 2:13-CV-64 TC
STEVEN TURLEY et al.,
District Judge Tena Campbell
Defendants.
Plaintiff, Gerardo Thomas Garza, a prisoner at Utah State
Prison, filed this pro se civil rights suit.1
Reviewing the
Complaint under 28 U.S.C.S. § 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
Defendants Turley and Haddon on a respondeat-superior
theory.
(b)
provides no affirmative link between violation of
Plaintiff's civil rights and Defendants Brimhall and Gordon.
(c)
is inappropriately amended by a document filed on March 11,
2013.
(d)
appears to be filed past the applicable statute of
limitation (see below).
(e)
invalidly alleges civil-rights breaches based on denied
grievances.
(f)
alleges a conspiracy claim that is too vague.
1
See 42 U.S.C.S. § 1983 (2013).
(g)
asserts taunting-and-teasing claims that appear to violate
42 U.S.C.S. § 1997e(e) (2013), which reads, "No Federal
civil action may be brought by a prisoner . . . for mental
or emotional injury suffered while in custody without a
prior showing of a physical injury or the commission of a
sexual act."
(h)
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
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).
2
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
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
4
Hall v. Bellmon, 935 F.2d 1106, 1009 (10th Cir. 1991).
5
Id. at 1110.
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).
3
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.
As to Plaintiff's conspiracy claim, he "must specifically
plead 'facts tending to show agreement and concerted action.'"
Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (quoting
Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir.
1983)).
Plaintiff has not met this responsibility in his current
complaint; his vague assertions that multiple people lied to
cover up the assault, and, therefore, a conspiracy must be
involved, are not enough.
He must assert more detail to pursue
this claim further.
Finally, "Utah's four-year residual statute of limitations
. . . governs suits brought under section 1983."11
Plaintiff's
claims accrued when "'facts that would support a cause of action
are or should be apparent.'"12
The assault underlying these
claims appears to have occurred more than four years before this
case was filed.
11
Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995).
12
Id. at 675 (citation omitted).
4
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 12th day of June, 2013.
BY THE COURT:
______________________________
JUDGE TENA CAMPBELL
United States District Court
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?