Schneider v. Harrison et al
Filing
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MEMORANDUM DECISION and ORDER: It is hereby ordered Plaintiff must within thirty days cure the Complaint's deficiencies noted in the order. The Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide with a f orm complaint for Plaintiff to use should he 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.Denying 7 Motion to Appoint Counsel; Denying 11 Motion for service of counsel; Denying 12 Motion for copy of the Complaint. Plaintiff suggests this is needed so he may serve the Complaint; however, the Complaint is invalid, as discussed. See order for details. Signed by Judge David Nuffer on 1/14/2016. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ANDREW R. SCHNEIDER,
ORDER & MEMORANDUM DECISION
Plaintiff,
v.
TOOELE COUNTY SHERIFF et al.,
Defendants.
Case No. 2:15-CV-209-DN
District Judge David Nuffer
Plaintiff, inmate Andrew R. Schneider, 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 Complaint and
orders Plaintiff to file an amended complaint to cure deficiencies before further pursuing his
claims.
Deficiencies in Complaint
Complaint:
(a) improperly names as a defendant Tooele County Sheriff, when he should be naming a
specific individual and when the doctrine of respondeat superior likely renders it an
invalid defendant.
(b) inappropriately alleges civil-rights violations based on denied grievances.
(c) does not state a proper legal-access claim (see below).
(d) raises issues of classification change in a way that does not support a cause of action.
(e) asserts an injury stemming from rude language that appears to violate 42 U.S.C.S. §
1997e(e) (2013), which reads, "No Federal civil action may be brought by a prisoner .
. . for mental or emotional injury suffered while in custody without a prior showing of
a physical injury or the commission of a sexual act.”
(f) 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 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).
Finally, the Court notes that on of Plaintiff's claims involves legal access. As Plaintiff
fashions his amended complaint, he should therefore keep in mind that it is well-recognized that
prison inmates "have a constitutional right to 'adequate, effective, and meaningful' access to the
courts and that the states have 'affirmative obligations' to assure all inmates such access." Ramos
v. Lamm, 639 F.2d 559, 583 (10th Cir. 1980). In Bounds v. Smith, 430 U.S. 817 (1977), the
Supreme Court expounded on the obligation to provide access to the Courts by stating "the
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fundamental constitutional right of access to the courts requires prison authorities to assist
inmates in the preparation and filing of meaningful legal papers by providing prisoners with
adequate law libraries or adequate assistance from persons trained in the law." Id. at 828
(footnote omitted & emphasis added).
However, to successfully assert a constitutional claim for denial of access to the courts, a
plaintiff must allege not only the inadequacy of the library or legal assistance furnished but also
"that the denial of legal resources hindered [the plaintiff's] efforts to pursue a nonfrivolous
claim." Penrod v. Zavaras, 84 F.3d 1399, 1403 (10th Cir. 1996) (emphasis added); Carper v.
Deland, 54 F.3d 613, 616 (10th Cir. 1995). In other words, a plaintiff must show "that any
denial or delay of access to the court prejudiced him in pursuing litigation." Treff v. Galetka, 74
F.3d 191, 194 (10th Cir. 1996). Moreover, the non-frivolous litigation involved must be "habeas
corpus or civil rights actions regarding current confinement." Carper, 54 F.3d at 616; accord
Lewis v. Casey, 518 U.S. 343, 353-55 (1996).
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).
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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.
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 appointed counsel is DENIED, (see Docket Entry # 7);
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.
(5) Plaintiff’s motion for service of process is DENIED. (See Docket Entry # 11.) There
is no valid complaint on file to serve. Moreover, the Court will screen and order service
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of process on prisoner complaints without prompting. So, no motions of this kind are
ever needed.
(6) Plaintiff’s motion for a copy of the Complaint is DENIED. (See Docket Entry # 12.)
Plaintiff suggests this is needed so he may serve the Complaint; however, the Complaint
is invalid, as discussed above.
DATED this 14th day of January, 2016.
BY THE COURT:
CHIEF JUDGE DAVID NUFFER
United States District Judge
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