Shook v. State of Utah et al

Filing 6

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. 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 David Sam on 5/15/17. (jmr)

FILED IN UNITED STATES DISTRICT
COURT, DISTRICT OF UTAH

MAY 15 2017
D.MARKJONES,CLERK
DEPUTY CLERK

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JASON SHOOK,
Plaintiff,

ORDER & MEMORANDUM DECISION

V.

STATE OF UTAH et al.,
Defendants.

Case No. 2:15-CV-491-DS
District Judge David Sam

Plaintiff, inmate Jason Shook, filed this prose civil rights suit, see 42 U.S.C.S. § 1983
(2017), informa 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) does not affirmatively link some defendants to civil-rights violations.
(c) possibly states crimes by Defendants must be redressed; however, a federal civilrights is not the proper place to address criminal behavior.
(d) contains claims based on state law--e.g., negligence--though there are no valid federal
claims in the Complaint providing grounds for pendent jurisdiction.
(e) 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

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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 "(l) 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 S'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).

Prose 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. Bellman, 93 5 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 Plaintiffs civil rights. See Bennett v. Passic, 545 F.2d

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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).
• State Immunity

Regarding 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,
2006 U.S. Dist. LEXIS 51632, at *8 (W.D. Okla. July26, 2006) (unpublished) (citing Lujan v.
Regents of Univ. of Cal., 60 F.3d 1511, 1522 (10th Cir. 1995); Eastwood v. Dep't ofCorrs., 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.

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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.
(3) If Plaintiff fails to timely cure the above deficiencies according to this Order's
instructions, this action will be dismissed without further notice.
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DATED this __LI__ day of Af't11, 2017.
BY THE COURT:

JUDGE DAVID SAM
United States District Court

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