McRae v. Federal Bureau of Prisons et al
MEMORANDUM DECISION & ORDER: denying 5 Motion to Appoint Counsel; Denied/finding as moot 7 Motion to Amend/Correct; Denied/finding as moot 10 Motion for preliminary Injunctive relief, Plaintiff must within thirty days cure th e Complaint's deficiencies noted. The Clerk's Office shall mail Paintiff a copy of the Pro Se litigant Guide with a form complaint and habeas petition for plaintiff to use should be choose to file another amended complaint or habeas corpus petition. If Plaintiff fails to timely cure the above deficiencies according to this Orders instructions, this action will be dismissed. Signed by Judge Robert J. Shelby on 06/14/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
STEPHEN PLATO MCRAE,
ORDER & MEMORANDUM DECISION
FEDERAL BUREAU OF PRISONS et al.,
Case No. 2:17-CV-66-RJS
District Judge Robert J. Shelby
Plaintiff, inmate Stephen Plato McRae, 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
A. Deficiencies in Complaint
(a) improperly names Federal Bureau of Prisons as a defendant under Section 1983,
which is meant to support actions against state and local defendants.
(b) improperly names Iron County and Purgatory Correctional Facilities as defendants,
though they are not independent legal entities that may sue or be sued.
(c) fails to provide an affirmative link between specific defendants and specific civilrights violations.
(d) inappropriately alleges civil rights violations on a respondeat-superior theory.
(e) does not state a proper legal-access claim (see below).
(f) is perhaps supplemented with claims from documents (including a motion for
preliminary injunctive relief) filed since the Complaint and “Amended Complaint,”
which claims should be included in an amended complaint, if filed, and will not be
treated further by the Court unless properly included.
(g) refers to John-Doe types, without giving detailed information that would allow them
to be identified.
(h) appears to try to bring claims against other defendants who are referred to only in the
Complaint’s text and not named in the Complaint’s heading.
(i) requests injunctive relief, the granting of which would require confirmation that
Plaintiff is still in whatever facility from which he requests the injunctive relief.
(j) inappropriately alleges civil-rights violations on the basis of denied grievances.
B. 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,
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,
• Legal Access
The Court notes that Plaintiff's claim(s) 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 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).
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
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
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.
(4) Plaintiff's motion for appointed counsel is DENIED, (see Docket Entry # 5);
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
(5) Plaintiff’s motions to amend his complaint and for preliminary injunctive relief
are DENIED as moot, given the above analysis. (See Docket Entry #s 7 & 10.)
DATED this 14th day of June, 2017.
BY THE COURT:
JUDGE ROBERT J. SHELBY
United States District Court
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