Jessup v. Roberts et al

Filing 26

ORDER & MEMORANDUM DECISION denying 21 Motion to Appoint Counsel; denying 22 Motion for Service of Process (Prisoner); granting 24 Motion to Amend; Plaintiff must within thirty days cure the Amended Complaints deficiencies n oted above. The Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide with a form complaint should he choose to file an amended complaint. If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. See order for further details. Signed by Judge Ted Stewart on 1/22/16. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JACK JESSUP,
Plaintiff,

ORDER & MEMORANDUM DECISION

v.
DR. SYDNEY ROBERTS et al.,
Defendants.

Case No. 2:14-CV-829-TS
District Judge Ted Stewart

Plaintiff, inmate Jack Jessup, 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 his Amended Complaint
and orders Plaintiff to file a second amended complaint to cure deficiencies before further
pursuing his claims.
Deficiencies in Amended Complaint
Plaintiff attempts to amend his amended complaint to add Jeremy Beltran, EMT, as a
defendant; however, he does not link Beltran to any of his claims.
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 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
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).

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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).
Motion to Appoint Counsel
The Court now addresses Plaintiff's motion for the Court to request pro bono counsel to
represent him. Plaintiff has no constitutional right to counsel. See Carper v. Deland, 54 F.3d
613, 616 (10th 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.
§ 1915(e)(1) (2013); Carper, 54 F.3d at 617; Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
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
(10th 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 Cir. 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.

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ORDER
IT IS HEREBY ORDERED that:
(1) Plaintiff must within thirty days cure the Amended 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 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 to amend his Amended Complaint is GRANTED, (see Docket
Entry # 24); he must in his second amended complaint specify what Jeremy Bertran may
have done to violate his civil rights.
(5) Plaintiff's motion for appointed counsel is DENIED, (see Docket Entry # 21);
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.
(6) Plaintiff’s motion for service of process is DENIED. (See Docket Entry # 22.) There
is no valid complaint on file to serve. Moreover, the Court will screen and order service
of process on prisoner complaints without prompting. So, no motions of this kind are
ever needed.
DATED this 22nd day of January, 2016.
BY THE COURT:

JUDGE TED STEWART
United States District Judge

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