Vigil v. State of Utah et al
MEMORANDUM DECISION and ORDER: It is hereby ordered: Plaintiff's motions for extra time in which to amend his Complaint is GRANTED. Plaintiff shall file his amended complaint within ninety days. The Clerk's Office shall mail Plaintiff a copy of the Pro se Litigant Guide with a blank civil rights complaint. Granting 8 Motion to Amend/Correct; Granting 14 Motion for Extension of Time to Amend; Denying 15 Motion to Appoint Counsel; Denying 16 Motion for Service of Process (Prisoner). Signed by Judge Clark Waddoups on 03/08/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
PAUL R. VIGIL,
MEMORANDUM DECISION & ORDER
STATE OF UTAH at el.,
Case No. 2:16-CV-137-CW
District Judge Clark Waddoups
Plaintiff, Paul R. Vigil, moves the Court to allow him extra time to amend his Complaint
here. The Court grants the motions, giving the following guidance for Plaintiff to follow in
amending the Complaint.
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 or other documents already filed in this case.
See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (stating amended complaint
supercedes 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, 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.3d 1433, 1441, (10th Cir. 1996) (stating
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.
MOTION FOR APPOINTED 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) (2013); 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
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
IT IS HEREBY ORDERED that:
(1) Plaintiff's motions for extra time in which to amend his Complaint are GRANTED.
(See Docket Entry #s 8 & 14.) Plaintiff shall file his amended complaint within ninety days.
(2) The Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide with a
blank civil-rights complaint.
(3) Plaintiff's motion for appointed counsel is DENIED, (see Docket Entry # 15);
however, if, after the case develops further, it appears that counsel may be needed or of specific
help, the Court will ask an attorney to appear pro bono on Plaintiff's behalf.
(4) Plaintiff’s motion for service of process is DENIED. (See Docket Entry # 16.)
Plaintiff's Complaint is invalid for service, in that the Court has just granted Plaintiff the time he
requests to amend it. Moreover, the Court will screen and order service of process on prisoner
complaints without prompting. So, no motions of this kind are ever needed.
DATED this 8th day of March, 2017.
BY THE COURT:
JUDGE CLARK WADDOUPS
United States District Court
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