Jones v. Herbert et al

Filing 9

MEMORANDUM DECISION and ORDER: Plaintiff must within thirty days cure the Complaint's deficiencies noted above. The Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide with a form complaint and habeas pe tition for Plaintiff to use should be choose to file another amended complaint or a habeas corpus petition. The Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide with a form complaint and habeas petition for Plaintiff to us e should he choose to file another amended complaint or a habeas corpus petition. 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 Robert J. Shelby on 04/17/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
Michael Anthony Jones,
Plaintiff,

ORDER & MEMORANDUM DECISION

v.
Case No. 2:15-CV-41-RJS

Gary R. Herbert et al.,
Defendants.

District Judge Robert J. Shelby

Plaintiff, inmate Michael Anthony Jones, filed this pro se civil rights suit, see 42
U.S.C.S. § 1983 (2017), in forma pauperis, see 28 id. § 1915. The Court now screens his
Complaint and orders Plaintiff to file an amended complaint to cure deficiencies before further
pursuing his claims.
A. Deficiencies in Complaint
Complaint:
(a) possibly alleges claims that concern the constitutionality of his conviction and/or
validity of his imprisonment, which should be brought in a habeas-corpus petition,
not a civil-rights complaint.
(b) inappropriately alleges civil-rights violations on a respondeat-superior theory.
(c) does not affirmatively link Defendants to civil-rights violations.
(d) alleges claims that are possibly invalidated by the rule in Heck (see below).
(e) states crimes by Defendants must be redressed; however, a federal civil-rights is not
the proper place to address criminal behavior.
(f) is in two parts, yet must be presented in one cohesive pleading to be considered.

(g) invalidly brings a “claim” against Judge Tena Campbell of this Court for failing to
protect him from unconstitutional application of the law to his claims in an earlier
habeas-corpus case in this Court that she dismissed. (See Jones v. Bigelow, 2;13-CV593 TC (D. Utah May 15, 2014) (dismissal order).)
(h) does not identify individual property owned by Plaintiff that has been
unconstitutionally taken from him.
(i) is an improper forum for bringing Utah State constitutional claims, considering that
pendent jurisdiction has not been established.
B. 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

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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).
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).
• Heck
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.

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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 apparently not happened and
may result in dismissal of such claims.
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 and habeas petition for Plaintiff to use should he choose to file
another amended complaint or a habeas-corpus petition.

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(3) If Plaintiff fails to timely cure the above deficiencies according to this Order's
instructions, this action will be dismissed without further notice.
DATED this 17th day of April, 2017.
BY THE COURT:

JUDGE ROBERT J. SHELBY
United States District Court

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