Garza v. Cook

Filing 15

MEMORANDUM DECISION & ORDER TO CURE DEFICIENT COMPLAINT: Plaintiff must within thirty days cure the Complaint's deficiencies noted. The Clerks Office shall mail Plaintiff a copy of the Pro Se Litigant Guide with a form complaint for Plaintiff to use should he choose to file an amended complaint. See Order for details; Denying 6 Motion for Preliminary Injunction; denying 6 Motion for TRO; denying 8 Motion for complete copies of motions; denying 9 Motion for Hearing; denying 10 Motion for Hearing. Signed by Judge Dee Benson on 9/3/2015. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
GERARDO THOMAS GARZA,
Plaintiff,

MEMORANDUM DECISION & ORDER
TO CURE DEFICIENT COMPLAINT

v.
ROLLIN COOK et al.,
Defendants.

Case No. 2:14-CV-768 DB
District Judge Dee Benson

Plaintiff, Gerardo Thomas Garza, filed this pro se civil rights suit, see 42 U.S.C.S. § 1983
(2015), in forma 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)

is not filed on a proper form complaint.

(b)

does not identify defendants in caption.

(c)

does not set forth causes of action in an organized fashion.

(d)

apparently does not consolidate all Plaintiff’s arguments as it must. (This is based on
the arguments included in other documents outside the Complaint.)

(e)

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)).

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 re-filing 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 other documents on the docket. 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 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
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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).
Preliminary Injunctive Relief
The Court evaluates Plaintiff's motion for preliminary injunctive relief. Plaintiff appears
to merely be trying to expedite the relief he seeks in his complaint. This type of injunction is
disfavored by the law. See SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098-99 (10th Cir.
1991).
Further, Plaintiff has not specified adequate facts showing each of the four elements
necessary to obtain a preliminary injunctive order:
"(1) a substantial likelihood of prevailing on the merits; (2)
irreparable harm in the absence of the injunction; (3) proof that the
threatened harm outweighs any damage the injunction may cause
to the party opposing it; and (4) that the injunction, if issued, will
not be adverse to the public interest."
Brown v. Callahan, 979 F. Supp. 1357, 1361 (D. Kan. 1997) (quoting Kan. Health Care Ass'n v.
Kan. Dep't of Soc. and Rehab. Servs., 31 F.3d 1536, 1542 (10th Cir. 1994)).

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Preliminary injunctive relief is an extraordinary and drastic remedy to be granted only
when the right to relief is "clear and unequivocal." SCFC ILC, Inc., 936 F.2d at 1098. The
Court has carefully reviewed Plaintiff's pleadings and motions for injunctive relief and concludes
Plaintiff's claims do not rise to such an elevated level that an emergency injunction is warranted.
In sum, Plaintiff has not met the heightened pleading standard required in moving for an
emergency injunction.
ORDER
IT IS HEREBY ORDERED that:
(1) Plaintiff 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 with a form
complaint for Plaintiff to use should he choose to file an amended complaint.
(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 preliminary injunctive relief is DENIED. (See Docket Entry #
6.)
(5) Plaintiff’s motion for a complete copy of all motions filed in this Court is DENIED.
(See Docket Entry # 8.) Plaintiff’s filings are so lengthy that--based simply on his
expressed desire to verify what the Court has received from him--it would be an
unreasonable burden on the Court to have to copy all Plaintiff’s motions and mail them to
Plaintiff.
(6) Plaintiff’s motions for hearings are DENIED. (See Docket Entry #s 9 & 10.)
Without a valid complaint on file, such motions are premature. Moreover, the Court will

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determine on its own--with no prompting from Plaintiff--whether a hearing is required in
the future.
DATED this 3rd day of September, 2015.
BY THE COURT:

DEE BENSON
United States District Judge

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