Davis v. Lubeck et al

Filing 10

MEMORANDUM DECISION denying 8 Motion to Appoint Counsel ; denying 9 Motion for Service of Process (Prisoner). If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. Signed by Judge David Sam on 9/3/14. (jmr)

FILED IN UNITED STATES DISTRICT
COURT, D/STRfCT OF UTAH

SEP -4 2014
IN THE UNITED STATES DISTRICT COURT BYO. MARK JONES, CLERK
FOR THE DISTRICT OF UTAH

DEPUTY CLERK

DEXTER PARIS DAVIS,
Plaintiff,

MEMORANDUM DECISION & ORDER
TO CURE DEFICIENT COMPLAINT

v.
JUDGE BRUCE LUBECK et aI.,
Defendants.

Case No. 2:13-CV-933-DS
District Judge David Sam

Plaintiff, Dexter Paris Davis, filed this pro se civil rights suit, see 42 U.S.C.S. § 1983

(2014), in/onna pauperis, see 28 id. § 1915. The Court now screens the complaint and orders
Plaintiff to file an amended complaint to cure deficiencies before further pursuing his claims.

Deficiencies in Complaint
Complaint:
(a)

alleges claims that are possibly invalidated by the rule in Heck (see below).

(b)

possibly alleges claims that concern the constitutionality of his conviction andlor validity
of his imprisonment, which should be brought in a habeas-corpus petition, not a civil­
rights complaint.

(c)

does not address Judge Lubeck's potential immunity from suit, as further explained
below.

(d)

does not address Prosecutor Matthew Hansen's potential immunity from suit, as further
explained below.

(e)

brings civil-rights c1aim(s) against his defense attorney, who is not properly named, as he
is not a state actor. See Garza v. Bandy, No. 08-3152,2008 U.S. App. LEXIS 17440, at
*4 (10th Cir. Aug. 13,2008) (unpublished) ("[T]he Supreme Court has stated that 'a
public defender does not act under color of state law when performing a lawyer's
traditional functions as counsel to a defendant in a criminal proceeding.''' (quoting Polk
County v. Dodson, 454 U.S. 312, 325 (1981)).

(f)

does not state enough information regarding inadequate medical care to state a claim.

(g)

has claims apparently regarding current confinement; however, the complaint was
apparently not drafted with the help of contract attorneys.
'
Instructions to Plaintiff

Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain n(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. n 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 plaintiffthat 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 supersedes original).
Second, the complaint must clearly state what each defendant--typically, a named
government employee--did to violate Plaintiffs 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 (lOth 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, the Court concludes that Plaintiffs 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 plaintiffs 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) (citingHeckv. Humphrey, 512 U.S. 477, 486-87 (1994». Heckprevents
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 plaintiffs favor would unavoidably
imply that the conviction or sentence is invalid. Id. at 487. Here, it appears it would regarding
some claims. If this Court were to conclude that Plaintiffs constitutional rights regarding illegal
incarceration were violated in a prejudicial manner, it would be stating that Plaintiffs 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 claim.
Sixth, it is well settled that judges "are absolutely immune from suit unless they act in
'clear absence of all jurisdiction,' meaning that even erroneous or malicious acts are not proper
bases for § 1983 claims." Segler v. Felfam Ltd. P'ship, No. 08-1466,2009 U.S. App. LEXIS
10152, at *4 (10th Cir. May 11,2009) (unpublished) (quoting Stump v. Sparkman, 435 U.S. 349,
356-57 (l978)). Regarding the claims at issue here, Judge Lubeck very well may have been
acting in his judicial capacity in presiding over this case, so his actions would be entitled to
absolute immunity. See Doran v. Sanchez, No. 08-2042,2008 U.S. App. LEXIS 17987, at *2
(lOth Cir. Aug. 19,2008) (unpublished).
Finally, a prosecutor acting within the scope of his duties enjoys absolute immunity from
suit under § 1983. Imbler v. Pachtman, 424 U.S. 409,424 (1976). Hansen's acts, as alleged by
Plaintiff, appear to relate to his advocacy before the court. This defendant therefore may be
entitled to absolute prosecutorial immunity from this lawsuit.

MOTION TO APPOINT COUNSEL

The Court now addresses Plaintiff's motion for the Court to request pro bono counsel to
represent him. Plaintiffhas no constitutional right to counsel. See Carper v. Deland, 54 F.3d
613,616 (lOth Cir. 1995); Bee v. Utah State Prison, 823 F.2d 397, 399 (10th Cir. 1987).
However, the Court may in its discretion appoint counsel for indigent plaintiffs. See 28 U.S.C.S.
§ I 915(e)(l) (2014); Carper, 54 F.3d at 617; Williams v. Meese, 926 F.2d 994,996 (10th Cit.
1991). "The burden is upon the applicant to convince the court that there is sufficient merit to
his claim to warrant the appointment of counseL" McCarthy v. Weinberg, 753 F.2d 836, 838
(lOth Cir. 1985).
When deciding whether to appoint counsel, the district court 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.'" Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cit. 1995) (quoting Williams, 926
F.2d at 996); accord McCarthy, 753 F.2d at 838-39. 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 motion for appointed
counsel.

ORDER
IT IS HEREBY ORDERED:
(l) Plaintiffs motion for service of process is DENIED, (see Docket Entry # 9), and he
must within thirty days cure the complaint's 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 this Order's
instructions, this action will be dismissed without further notice.
(4) Plaintiff's motion for appointed counsel is DENIED, (see Docket Entry # 8);
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.
DATEDthis .JrA

..:.."c:.,4­

dayof~t,2014.

BY THE COURT:

DAVID SAM
United States District Judge