Chaparro v. Sorensen et al

Filing 9

MEMORANDUM DECISION and Order to Amend Deficient Complaint. It is hereby ordered that; Plaintiff shall have thirty days from the date of this roder to 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 the instructions here this action will be dismissed without further notice. Signed by Judge Dee Benson on 8/30/2013. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

CARLOS OJEDA CHAPARRO,
Plaintiff,
v.

MEMORANDUM DECISION &
ORDER TO AMEND DEFICIENT
COMPLAINT
Case No. 2:13-CV-185 DB

WARDEN CUCF et al.,

District Judge Dee Benson

Defendants.

Plaintiff, Carlos Ojeda Chaparro, an inmate at Utah State
Prison, filed this pro se civil rights suit.
1983 (2013).

See 42 U.S.C.S. §

Plaintiff was allowed to proceed in forma pauperis.

See 28 id. 1915.

Reviewing the complaint under § 1915(e), the

Court has determined that Plaintiff's complaint is deficient as
described below.
Deficiencies in Complaint
Complaint:
(a)

does not clearly identify each defendant, as John Does must
each be individually numbered and described in detail.

(b)

possibly inappropriately alleges on a respondeat-superior
theory civil-rights violations against the unnamed warden
and the director of corrections.

(c)

names different defendants in the caption than in the text.

(d)

does not allege enough detail about his failure-to-protect
claim--e.g., date and specific facts.

(e)

has claims appearing to be based on conditions of current
confinement; however, the complaint was not submitted
through contract attorneys.

Instructions to Plaintiff
Under Rule 8 of the Federal Rules of Civil Procedure a
complaint is required to 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."

Fed. R. Civ. P. 8(a).

The

requirements of Rule 8(a) are intended 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), aff’d,
964 F.2d 1022 (10th Cir. 1992).
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."
1106, 1009 (10th Cir. 1991).

Hall v. Bellmon, 935 F.2d

Moreover, "it is not the proper

function of the Court to assume the role of advocate for a pro se
litigant."

Id. at 1110.

Thus, the Court cannot "supply

additional facts, [or] construct a legal theory for plaintiff

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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 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).
Third, Plaintiff cannot name an individual as a defendant based
solely on his or her 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).

Fourth, if Plaintiff's claims relate to the

conditions of Plaintiff's current confinement, Plaintiff should
seek help from the prison contract attorneys in preparing initial
pleadings.

And, finally, 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.
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ORDER
Based on the foregoing, 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 30th day of August, 2013.
BY THE COURT:

_____________________________
DEE BENSON
United States District Judge

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