Wright v. Nephi City et al

Filing 11

MEMORANDUM DECISION and ORDER: It is hereby Ordered that: Plaintiff must within Thirty Days cure the Complaint's deficiencies noted. The Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide with a form com plaint 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's instructions, this action will be dismissed without further notice. Denying 7 Motion to Appoint Counsel; Denying 9 Motion for copies and waiving the cost; Denying 10 Motion for Extension of Time for service of process. Signed by Judge Clark Waddoups on 03/08/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
BLAKE R. WRIGHT,
Plaintiff,

ORDER & MEMORANDUM DECISION

v.
Case No. 2:16-CV-33-CW

NEPHI CITY et al.,
Defendants.

District Judge Clark Waddoups

Plaintiff, inmate Blake R. Wright, 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
claims.
1. Deficiencies in Complaint
Complaint:
(a) is not on the form required by the Court.
(b) 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.
(c) appears to inappropriately allege civil-rights violations on a respondeat-superior
theory.
(d) does not affirmatively link several of the defendants to civil-rights violations.
(e) alleges claims that are possibly invalidated by the rule in Heck (see below).
(f) appears to involve claims that are past the statute of limitations for a civil-rights case
(see below).

(g) alleges conspiracy claims that are too vague (see below).
(h) improperly names prosecutors as defendants, without considering prosecutorial
immunity (see below).
(i) improperly names "State of Utah" as a defendant, though there is no showing that it
has waived its governmental immunity (see below).
(j) states claims in violation of municipal-liability doctrine (see below).
(k) brings civil-rights claims against Nedra Loyola and Shauna Bock, who are not
properly named, as they are not state actors.
(l) improperly names Milton Harmon as a defendant, without considering that public
defenders are not considered to be state actors subject to suit under § 1983.
(m) contains claims based on state law--e.g., negligent infliction of emotional distress and
fraud--though there are no valid federal claims in the Complaint providing grounds
for pendent jurisdiction.
(n) appears not to have been prepared with help from the prison’s contract attorneys.
2. 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,

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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,
2009).

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• Heck
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.

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• Statute of Limitations
"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 appear to have occurred more than
four years before this case was filed.
• Legal Access
Next, the Court notes that Plaintiff's claims 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

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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).
• Conspiracy
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 his illegal arrest and incarceration, and, therefore, a conspiracy must be involved, are not
enough. He must assert more detail to pursue this claim further.
• Prosecutorial Immunity
A prosecutor acting within the scope of his duties enjoys absolute immunity from suit
under § 1983. Imbler v. Pachtman, 424 U.S. 409, 424 (1976). The prosecutors’ acts, as alleged
by Plaintiff, appear to relate to advocacy before the court. These defendants therefore may be
entitled to absolute prosecutorial immunity from this lawsuit.
• 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. 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

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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.
• Municipal Liability
Finally, to establish the liability of municipal entities, such as Nephi City and Juab
County, under § 1983, "a plaintiff must show (1) the existence of a municipal custom or policy
and (2) a direct causal link between the custom or policy and the violation alleged." Jenkins v.
Wood, 81 F.3d 988, 993-94 (10th Cir. 1996) (citing City of Canton v. Harris, 489 U.S. 378, 385
(1989)). Municipal entities cannot be held liable under § 1983 based on the doctrine of
respondeat superior. See Cannon v. City and County of Denver, 998 F.2d 867, 877 (10th Cir.
1993); see also Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978).
Plaintiff has not so far established a direct causal link between his alleged injuries and
any custom or policy of Nephi City or Juab County. Thus, the Court concludes that Plaintiff's
Complaint, as it stands, appears to fail to state claims against these municipal entities.
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) (2016); 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

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his claim to warrant the appointment of counsel." McCarthy v. Weinberg, 753 F.2d 836, 838
(10th Cir. 1985).
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 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 motion for appointed counsel is DENIED, (see Docket Entry # 7);
however, if, after the case develops further, it appears that counsel may be needed

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or of specific help, the Court will ask an attorney to appear pro bono on Plaintiff's
behalf.
(5) Plaintiff’s motion for copies and waiving the cost is DENIED, (see Docket Entry
# 9); Plaintiff has not provided a good reason for needing the complaint in this
case and should copy his own pleadings (even if by hand) before he sends them to
the Court, if he wishes to keep his own file.
(6) Plaintiff’s motion for time extension for service of process is DENIED, (see
Docket Entry # 10); as noted above, there is no valid complaint on file at this time
to be served.
DATED this 8th day of March, 2017.
BY THE COURT:

JUDGE CLARK WADDOUPS
United States District Court

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