Rohwedder v. Unified Police Department et al

Filing 13

ORDER AND MEMORANDUM DECISION directing Plaintiff to file a second amended complaint to cure deficiencies; denying 9 Motion for Service of Process (Prisoner). Signed by Judge Clark Waddoups on 3/5/15 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
BILLY L. ROHWEDDER,
ORDER & MEMORANDUM DECISION

Plaintiff,
v.

Case No. 2:13-CV-750-CW

UNIFIED POLICE DEP'T et al.,

District Judge Clark Waddoups

Defendants.

Plaintiff, inmate Billy L. Rohwedder, filed this pro se civil rights suit, see 42 U.S.C.S. §
1983 (2014), in forma pauperis, see 28 id. § 1915. The Court now screens the Amended
Complaint and orders Plaintiff to file a second amended complaint to cure deficiencies before
further pursuing his claims.
Deficiencies in Amended Complaint
Amended Complaint:
(a) improperly names Unified and West Jordan Police Departments as defendants,
though they are not independent legal entities that can sue or be sued.
(b) states claims in violation of municipal-liability doctrine (see below).
(c) alleges claims that are possibly invalidated by the rule in Heck (see below).
(d) is not on a Court-approved form.
(e) does not appear to state a claim against Detective Brown.
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." 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." Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). 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
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).
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, subordinate agencies of counties are not separate legal entities with capacity to sue
or be sued. 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). Thus,
the Court construes Plaintiff's claims against the Unified and West Jordan Police Departments as
claims against Salt Lake County and City of West Jordan, themselves.
To establish the liability of municipal entities, such as Salt Lake County or West Jordan
City, under § 1983, "a plaintiff must show (1) the existence of a municipal custom or policy and
(2) a direct causal link between the custom or policy and the violation alleged." Jenkins v.
Wood, 81 F.3d 988, 993-94 (10th Cir. 1996) (citing City of Canton v. Harris, 489 U.S. 378, 385
(1989)). Municipal entities cannot be held liable under § 1983 based on the doctrine of
respondeat superior. 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).
Plaintiff has not so far established a direct causal link between his alleged injuries and
any custom or policy of Salt Lake County or West Jordan City. Thus, the Court concludes that
Plaintiff’s complaint, as it stands, appears to fail to state claims against Salt Lake County and
West Jordan City.

Finally, the Court concludes that Plaintiff's claims appear to involve some allegations that
if true may invalidate his conviction and/or sentencing. "In Heck, the Supreme Court explained
that a § 1983 action that would impugn the validity of a plaintiff's underlying conviction cannot
be maintained unless the conviction has been reversed on direct appeal or impaired by collateral
proceedings." Nichols v. Baer, No. 08-4158, 2009 U.S. App. LEXIS 4302, at *4 (10th Cir. Mar.
5, 2009) (unpublished) (citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). Heck prevents
litigants "from using a § 1983 action, with its more lenient pleading rules, to challenge their
conviction or sentence without complying with the more stringent exhaustion requirements for
habeas actions." Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007) (citation omitted).
Heck clarifies that "civil tort actions are not appropriate vehicles for challenging the validity of
outstanding criminal judgments." 512 U.S. at 486.
Plaintiff argues that Defendants violated his constitutional rights in a way that may attack
Petitioner's very imprisonment. Heck requires that, when a plaintiff requests damages in a §
1983 suit, this Court must decide whether judgment in the plaintiff's favor would unavoidably
imply that the conviction or sentence is invalid. Id. at 487. Here, it appears it may regarding
some claims. If this Court were to conclude that Plaintiff's constitutional rights were violated in
a prejudicial manner, it would be stating that Plaintiff's conviction and/or sentence were not
valid. Thus, the involved claims "must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated." Id. This has not happened and may result
in dismissal of such claims.

ORDER
IT IS HEREBY ORDERED that:
(1) Plaintiff shall have THIRTY (30) 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.
And, (4) Plaintiff’s motion for service of process is DENIED. (See Docket Entry # 9.)
First, the Amended Complaint has been deemed deficient, and, therefore, not worthy of service.
And, second, the Court is already required by statute to screen prisoner complaints, see 28
U.S.C.S. § 1915A (2014), and order service of process if warranted, see id. § 1915(d). No
further prompting by Plaintiff is necessary.
DATED this 5th day of March, 2015.
BY THE COURT:

CLARK WADDOUPS
United States District Judge