Barnes v. Norton et al

Filing 19

MEMORANDUM DECISION & ORDER DISMISSING DEFENDANTS & ORDER OF SERVICE OF PROCESS ON REMAINING DEFENDANTS. denying 16 Motion to Appoint Counsel. THE CLERK OF COURT WILL NOT TAKE ANY FURTHER MOTIONS FOR APPOINTMENT OF COUNSEL WILL BE ACCEPTED. Defendants Billy Casper and Steven Turley are dismissed. See order for details. Signed by Judge Tena Campbell on 03/29/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
EARL LESTON BARNES,

v.

MEMORANDUM DECISION & ORDER
DISMISSING DEFENDANTS &
ORDERING SERVICE ON
REMAINING DEFENDANTS

SHAYNE NORTON et al.,

Case No. 2:15-CV-157-TC

Plaintiff,

Defendants.

District Judge Tena Campbell

Plaintiff/inmate Earl Leston Barnes filed a pro se civil rights case, see 42 U.S.C.S. § 1983
(2017), proceeding in forma pauperis, see 28 id. 1915. The court now screens his Amended
Complaint under the standard that any claims in a complaint filed in forma pauperis must be
dismissed if they are frivolous, malicious or fail to state a claim upon which relief may be
granted. See id. §§ 1915-1915A.
DISMISSAL ORDER
1. Claims
Plaintiff names as defendants Utah Department of Corrections (UDOC) employees Billie
Casper, Steven Turley, Chad Duford, Alan Howard, Shayne Norton, Lt. Roger Peterson, and
Sidney Roberts. He primarily alleges claims of inadequate medical treatment.
2. Grounds for Sua Sponte Dismissal
In evaluating the propriety of dismissing claims for failure to state a claim upon which
relief may be granted, this court takes all well-pleaded factual assertions as true and regards them
in a light most advantageous to the plaintiff. Ridge at Red Hawk L.L.C. v. Schneider, 493 F.3d

1174, 1177 (10th Cir. 2007). Dismissal is appropriate when, viewing those facts as true, the
plaintiff has not posed a "plausible" right to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007); Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). "The burden
is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that
he or she is entitled to relief." Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556).
When a civil-rights complaint contains "bare assertions" involving "nothing more than a
'formulaic recitation of the elements' of a constitutional . . . claim," the court considers those
assertions "conclusory and not entitled to" an assumption of truth. Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009) (quoting Twombly, 550 U.S. at 554-55). In other words, "the mere
metaphysical possibility that some plaintiff could prove some set of facts in support of the
pleaded claims is insufficient; the complaint must give the court reason to believe this plaintiff
has a reasonable likelihood of mustering factual support for these claims." Red Hawk, 493 F.3d
at 1177 (italics in original).
This court must construe pro se "'pleadings liberally,' applying a less stringent standard
than is applicable to pleadings filed by lawyers. Th[e] court, however, will not supply additional
factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's
behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citations omitted).
In the Tenth Circuit, this means that if this court can reasonably read the pleadings "to state a
valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to
cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence
construction, or his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). Still, it is not "the proper function of the district court to assume the role

2

of advocate for the pro se litigant." Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th
Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam)).
3. Affirmative Link
The complaint must clearly state what each individual defendant 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)). Plaintiff may
not name an entity or individual as a defendant based solely on supervisory position. See
Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating supervisory status alone is
insufficient to support liability under § 1983). Nor does "denial of a grievance, by itself without
any connection to the violation of constitutional rights alleged by plaintiff . . . establish personal
participation under § 1983." Gallagher v. Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787,
at *11 (10th Cir. Nov. 24, 2009).
Considering these guidelines, the court concludes that Plaintiff has done nothing to
affirmatively link Defendants Billie Casper and Steven Turley to his claims, but has instead
identified them merely as personnel who denied grievances. Plaintiff's claims against these
defendants therefore may not survive screening. And Defendants Casper and Turley are thus
dismissed.

3

ORDER FOR SERVICE OF PROCESS ON REMAINING DEFENDANTS
The court concludes that official service of process is warranted on the remaining
defendants. The United States Marshals Service (USMS) is directed to serve a properly issued
summons and a copy of Plaintiff's Amended Complaint, (see Docket Entry # 18), along with this
Order, upon the following UDOC defendants:
CHAD DUFORD
ALAN HOWARD
SHAYNE NORTON
LT. ROGER PETERSON
SIDNEY ROBERTS
Once served, Defendants shall respond to the summons in one of the following ways:
(A) If Defendants wish to assert the affirmative defense of Plaintiff's failure to exhaust
administrative remedies in a grievance process, Defendants must,
(i) within 20 days of service, file an answer;
(ii) within 90 days of filing an answer, prepare and file a Martinez report limited
to the exhaustion issue1; and,

1

See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (approving district court's practice of ordering prison
administration to prepare report to be included in pleadings in cases when prisoner has filed suit alleging
constitutional violation against institution officials).
In Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987), the Tenth Circuit explained the nature and function of a
Martinez report, saying:
Under the Martinez procedure, the district judge or a United States magistrate
[judge] to whom the matter has been referred will direct prison officials to
respond in writing to the various allegations, supporting their response by
affidavits and copies of internal disciplinary rules and reports. The purpose of
the Martinez report is to ascertain whether there is a factual as well as a legal
basis for the prisoner’s claims. This, of course, will allow the court to dig
beneath the conclusional allegations. These reports have proved useful to
determine whether the case is so devoid of merit as to warrant dismissal without
trial.
Id. at 1007.

4

(iii) within 120 days of filing an answer, file a separate summary judgment
motion, with a supporting memorandum.
(B) If Defendants choose to challenge the bare allegations of the Complaint, Defendants
shall, within 20 days of service,
(i) file an answer; or
(ii) file a motion to dismiss based on Federal Rule of Civil Procedure 12(b)(6).
(C) If Defendants choose not to rely on the defense of failure to exhaust and wish to
pierce the allegations of the Complaint, Defendants must,
(i) within 20 days of service, file an answer;
(ii) within 90 days of filing an answer, prepare and file a Martinez report
addressing the substance of the complaint; and,
(iii) within 120 days of filing an answer, file a separate summary judgment
motion, with a supporting memorandum.
(D) If Defendants wish to seek relief otherwise contemplated under the procedural rules
(e.g., requesting an evidentiary hearing), Defendants must file an appropriate motion
within 90 days of filing their answer.
The parties shall take note that local rules governing civil cases are in effect. This court
will order the parties to refile summary-judgment motions which do not follow the standards.
See D. Utah Civ. R. 5-2 (Filing Cases and Documents under Court Seal); id. 7-1 (Motions and
Memoranda); id. 26-2 (Standard Protective Order and Stays of Depositions); id. 56-1 (Summary
Judgment: Motions and Supporting Memoranda).

5

Plaintiff is notified that if Defendants move for summary judgment Plaintiff may not rest
upon the mere allegations in the complaint. Instead, as required by Federal Rule of Civil
Procedure 56(e), to survive a motion for summary judgment Plaintiff must allege specific facts,
admissible in evidence, showing that there is a genuine issue remaining for trial.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) Defendants Billie Casper and Steven Turley are DISMISSED.
(2) The USMS shall serve a completed summons, a copy of the Amended Complaint,
(see Docket Entry # 18), and a copy of this Order upon the above-listed remaining defendants—
Chad Duford, Alan Howard, Shayne Norton, Lt. Roger Peterson, and Sidney Roberts.
(3) Within twenty days of service, Defendants must file an answer or motion to dismiss,
as outlined above.
(4) If filing (on exhaustion or any other basis) a Martinez report, Defendants must do so
within 90 days of filing their answer(s). Under this option, Defendants must then file a
summary-judgment motion within 120 days of filing their answer.
(5) If served with a Martinez report, Plaintiff may file a response within 30 days of the
report’s filing date.
(6) If served with a summary-judgment motion or motion to dismiss, Plaintiff must
submit a response within 30 days of the motion’s filing date.
(7) Summary-judgment motion deadline is 120 days from filing of answer.

6

(8) If requesting relief otherwise contemplated under the procedural rules, Defendants
must do so within 90 days of filing their answer.
(9) Plaintiff's second motion for appointed counsel, (see Docket Entry # 16), is DENIED,
for the same reasons stated in a prior order in this case denying appointment of voluntary pro
bono counsel, (see Docket Entry # 5). The Clerk of Court shall take note that no further motions
for appointed counsel will be accepted by the court.
DATED this 29th day of March, 2017.
BY THE COURT:

JUDGE TENA CAMPBELL
United States District Court

7