Buchi v. Herbert et al

Filing 13

MEMORANDUM DECISION AND ORDER denying 7 Motion to Appoint Counsel ; granting 8 Motion to Amend/Correct Complaint. Signed by Judge Dee Benson on 7/3/2017. A copy of the Pro Se Litigant Guide with a blank civil-rights complaint was sent with a copy of this docket entry to the Plaintiff. (jds)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
VICTOR PETER BUCHI,
Plaintiff,

MEMORANDUM DECISION & ORDER

v.
WARDEN CROWTHER at el.,
Defendants.

Case No. 2:17-CV-51-DB
District Judge Dee Benson

Plaintiff, Victor Peter Buchi, moves the Court to allow him to amend his Complaint here.
The Court grants the motion, with 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 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, 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.

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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) (2017); 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 these factors, the Court
concludes 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's motion for permission to amend his Complaint is GRANTED. (See
Docket Entry # 8.) Plaintiff shall file his amended complaint within thirty days.

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(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 # 7);
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.
DATED this 3rd day of July, 2017.
BY THE COURT:

JUDGE DEE BENSON
United States District Court

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