Martin v. Lampshire et al

Filing 11

MEMORANDUM DECISION AND ORDER: Plaintiff shall have 30 days from the date of this order to amend complaint - failure to do so will result in dismissal of this action without further notice; denying 4 Motion for Service of Process (Prisoner). Signed by Judge David Nuffer on 9/27/14 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
TRAVIS BEN MARTIN,
Plaintiff,

MEMORANDUM DECISION
AND ORDER TO AMEND
DEFICIENT COMPLAINT

v.
JONATHON LAMPSHIRE et al.,
Defendants.

Case No. 2:13-CV-871-DN
District Judge David Nuffer

Plaintiff/inmate, Travis Ben Martin, filed this pro se civil rights suit. 1 Careful review
under 28 U.S.C.S. § 1915A (2014) has revealed the Plaintiff's Complaint is deficient as
described below.
Deficiencies in Complaint
The Complaint:
(a) does not address the immunity with which judicial personnel, such as Lynette McKinney,
carry out their official duties.
(b) does not provide the name of the Third District Court Administrator.
(c) has claims appearing to be based on conditions of current confinement; however, the
complaint was 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)).

1

See 42 U.S.C.S. § 1983 (2014).

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 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

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).

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).

2

portion of the original complaint. 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 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.
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 these instructions,
this action will be dismissed without further notice.

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

(4) Plaintiff's motion for service of process is DENIED. 11 Review of any proposed
amended complaint will include a decision on whether to serve process. No further
motions of this nature are necessary.
DATED this 27th day of September, 2014.
BY THE COURT:

CHIEF JUDGE DAVID NUFFER
United States District Court

11

(See Docket Entry # 4.)

4