Harner v. State of Utah et al

Filing 15

ORDER and Memorandum Decision denying 8 Motion for Evaluation ; denying 9 Motion to Combine ; denying 10 Motion for Placement ; denying 11 Motion for Copies; denying 12 Motion to Vacate. Plaintiff must within thirty da ys cure the Complaints deficiencies noted in this order. 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 an amended complaint or a habeas-corpus petition. If Plaintiff fails to timely cure the above deficiencies according to this Order'sinstructions, this action will be dismissed without further notice. Signed by Judge Dee Benson on 2/2/16. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
TIMOTHY WAYNE HARNER,
Plaintiff,

ORDER & MEMORANDUM DECISION

v.
STATE OF UTAH et al.,
Defendants.

Case No. 2:15-CV-456-DB
District Judge Dee Benson

Plaintiff, inmate Timothy Wayne Harner, 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.
A. Deficiencies in Complaint
Complaint:
(a) improperly names "State of Utah" as a defendant, though there is no showing that it
has waived its governmental immunity (see below).
(b) improperly names Utah Board of Pardons and Parole, which is an entity that can
neither sue nor be sued here.
(c) lists Defendants by titles instead of by individual names.
(d) appears, for some issues, to be filed past the applicable statute of limitation (see
below).
(e) appears for the most part to fail to state a constitutional claim because parole is not a
federal right (see below).

(f) 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.
(g) alleges claims that are possibly invalidated by the rule in Heck (see below).
(h) 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)).
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).

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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,
2009).
Immunity
Fifth, as to claims that have been made against the State, 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,

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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.
Statute of Limitations
Sixth, "Utah's four-year residual statute of limitations . . . governs suits brought under
section 1983.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). Plaintiff's claims accrued
when "'facts that would support a cause of action are or should be apparent.'” Id. at 675 (citation
omitted. Some of the circumstances underlying these claims appears to have occurred more than
four years before this case was filed.
Lack of Federal Constitutional Issue
Seventh, Plaintiff's arguments about the lack of due process or fairness in parole
procedures involve BOP's faulty consideration of information in determining whether to grant
him parole. This does not state the violation of a federal constitutional right. After all, "[t]here
is no constitutional or inherent right of a convicted person to be conditionally released before the
expiration of a valid sentence." Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S.
1, 7 (1979). "Parole is a privilege," not a constitutional right. See Lustgarden v. Gunter, 966
F.2d 552, 555 (10th Cir. 1992). Furthermore, it is well established that the Utah parole statute
does not create a liberty interest entitling prisoners to federal constitutional protection. See
Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994). Because Plaintiff has no substantive liberty

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interest in parole under the Federal Constitution, he cannot in this federal suit challenge the
procedures used to deny him parole. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983).
Therefore, the Court concludes that Plaintiff fails to state a claim regarding this issue.
Heck
Finally, 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

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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 an 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.
(4) Plaintiff’s other pending motions are DENIED. (See Docket Entry #s 8, 9, 10, 11 &
12.) These motions are either invalid (as described above) or premature (as there is not a
valid complaint on file).
DATED this 2nd day of February, 2016.
BY THE COURT:

JUDGE DEE BENSON
United States District Court

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