Bacilio v. Utah Department of Corrections Board and Parole Members et al
MEMORANDUM DECISION & 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 peti tion for Plaintiff to use 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 Clark Waddoups on 04/25/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MIGUEL ANGEL BACILIO,
ORDER & MEMORANDUM DECISION
UTAH DEP’T OF CORRS. et al.,
Case No. 2:15-CV-233-CW
District Judge Clark Waddoups
Plaintiff, inmate Miguel Angel Bacilio, 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
A. Deficiencies in 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) alleges claims that are possibly invalidated by the rule in Heck (see below).
(c) improperly names Board of Pardons and Utah Department of Corrections as
defendants, though they are not independent legal entities that may sue or be sued.
(d) does not state a proper legal-access claim (see below).
(e) alleges conspiracy claims that are too vague (see below).
(f) is in two parts, yet must be presented in one cohesive pleading to be considered.
(g) 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)
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
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,
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.
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.
• State Immunity
Regarding claims that have been made against the State or its subdivisions, generally, the
Eleventh Amendment prevents "suits against a state unless it has waived its immunity or
consented to suit, or if Congress has validly abrogated the state's immunity." Ray v. McGill, No.
CIV-06-0334-HE, 2006 U.S. Dist. LEXIS 51632, at *8 (W.D. Okla. July 26, 2006)
(unpublished) (citing Lujan v. Regents of Univ. of Cal., 60 F.3d 1511, 1522 (10th Cir. 1995);
Eastwood v. Dep't of Corrs., 846 F.2d 627, 631 (10th Cir. 1988)). Plaintiff asserts no basis for
determining that the State has waived its immunity or that it has been abrogated by Congress.
Because any claims against the State appear to be precluded by Eleventh Amendment immunity,
the Court believes it has no subject-matter jurisdiction to consider them. See id. at *9.
• Legal Access
Next, the Court notes that Plaintiff's claim(s) may involve 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
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).
As to Plaintiff's conspiracy claim, he "must specifically plead 'facts tending to show
agreement and concerted action.'" Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005)
(quoting Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983)). Plaintiff has not
met this responsibility in his current complaint; his vague assertions that multiple people lied to
effect breaches of his civil rights, and, therefore, a conspiracy must be involved, are not enough.
He must assert more detail to pursue this claim further.
• Judicial Immunity
It is well settled that judges "are absolutely immune from suit unless they act in 'clear
absence of all jurisdiction,' meaning that even erroneous or malicious acts are not proper bases
for § 1983 claims." Segler v. Felfam Ltd. P'ship, No. 08-1466, 2009 U.S. App. LEXIS 10152, at
*4 (10th Cir. May 11, 2009) (unpublished) (quoting Stump v. Sparkman, 435 U.S. 349, 356-57
(1978)). Regarding the claims at issue here, Judge Trease very well may have been acting in a
judicial capacity in presiding over this case, so the judges’ actions would be entitled to absolute
immunity. See Doran v. Sanchez, No. 08-2042, 2008 U.S. App. LEXIS 17987, at *2 (10th Cir.
Aug. 19, 2008) (unpublished).
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.
(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 25th day of April, 2017.
BY THE COURT:
JUDGE CLARK WADDOUPS
United States District Court
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