Melvin v. Clark et al

Filing 9

MEMORANDUM DECISION & ORDER: It is hereby ordered that: Plaintiff shall have THIRTY DAYS from the date of this order to cure the deficiencies noted. The Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide. If Plaintiff fails to timely cire the above deficiencies according to the instructions here this action may be dismissed without further notice. Signed by Judge Clark Waddoups on 06/01/2017. (Attachments: # 1 Certificate of Mailing)(kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
MARCUS CHARLES MELVIN,
MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.
UTAH STATE PRISON MED DEP’T et
al.,

Case No. 2:16-cv-96-CW
Judge Clark Waddoups

Defendants.

Plaintiff, Marcus Charles Melvin, an inmate at Utah State Prison, filed this pro se civil
rights suit. See 42 U.S.C. § 1983. Plaintiff was allowed to proceed in forma pauperis. See 28
U.S.C. § 1915. Reviewing the Complaint under § 1915(e), the Court has determined that
Plaintiff’s Complaint is deficient as described below.
Deficiencies in Complaint
The Complaint:
(a) does not make clear that Plaintiff is naming Utah State Prison Medical Director
Washington as a defendant and not the Utah State Prison medical department itself,
which is not an independent legal entity that can be sued; and
(b) fails to provide an affirmative link between Defendant Washington and a civil-rights
violation.
Moreover, if Plaintiff is still incarcerated, Plaintiff should redraft the Complaint with the
help of contract attorneys.
Instructions to Plaintiff
Under Rule 8 of the Federal Rules of Civil Procedure a complaint is required to contain
“(1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, . . .
(2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a

demand for judgment for the relief the pleader seeks.” Fed. R. Civ. P. 8(a). The requirements of
Rule 8(a) are intended to guarantee “that defendants enjoy fair notice of what the claims against
them are and the grounds upon which they rest.” TV Commnc’ns Network, Inc. v. ESPN, Inc.,
767 F. Supp. 1062, 1069 (D. Colo. 1991), aff’d, 964 F.2d 1022 (10th Cir. 1992).
Pro se litigants are not excused from compliance with the minimal pleading requirements
of Rule 8. “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,
1009 (10th Cir. 1991). Moreover, “it is not the proper function of the Court to assume the role of
advocate for a pro se litigant.” Id. at 1110. 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 individual defendant 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, 338 F. App’x 757,
759 (10th Cir. 2009) (unpublished) (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.3d 1433, 1441 (10th Cir. 1996) (stating

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supervisory status alone is insufficient to support liability under § 1983). And, fourth, Plaintiff is
warned that litigants who have had three in forma pauperis cases dismissed as frivolous or
meritless will be restricted from filing future lawsuits without prepaying fees.
ORDER
IT IS HEREBY ORDERED that:
(1) Plaintiff shall have THIRTY DAYS from the date of this order to cure the
deficiencies noted above.
(2) The Clerk’s Office shall mail Plaintiff a copy of the Pro Se Litigant Guide.
(3) If Plaintiff fails to timely cure the above deficiencies according to the instructions
here this action may be dismissed without further notice.
DATED this 1st day of June, 2017.
BY THE COURT:

CLARK WADDOUPS
United States District Judge

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