McRae v. Federal Bureau of Prisons et al

Filing 44

Memorandum Decision and Order Cure Deficient Second Amended Complaint: It is ordered Plaintiff must within THIRTY DAYS cure the Second Amended Complaint's deficiencies noted above by filing a document entitle, "Third Amended Complaint." All defendants and claims should be included in a third amended complaint, if filed, and will not be treated further by the Court unless properly included. This is the fifth and FINAL order allowing Plaintiff to cure deficiencies. I f a third amended complaint is filed, the Court will screen it for dismissal or service of process. 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 shoul d he choose to file another amended complaint or 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. Plaintiff shall not t ry to serve the third amended complaint on Defendants; instead the Court will perform its screening function and determine itself whether the complaint warrants service. See order for details. Signed by Judge Robert J. Shelby on 11/13/2019. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
STEPHEN PLATO MCRAE,
Plaintiff,

MEMORANDUM DECISION &
ORDER TO CURE DEFICIENT
SECOND AMENDED COMPLAINT

v.
SGT. FIELDING et al.,
Defendants.

Case No. 2:17-CV-66-RJS
Chief District Judge Robert J. Shelby

Having now screened pro se inmate/Plaintiff’s Second Amended Complaint, (Doc. No.
43), under its statutory review function,1 the Court orders Plaintiff to file a third amended
complaint to cure deficiencies before further pursuing claims. See 42 U.S.C.S. § 1983 (2019).2

1

The screening statute reads:
(a) Screening.—The court shall review . . . a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.
(b) Grounds for dismissal.—On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
complaint—
(1) is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
28 U.S.C.S. § 1915A (2019).
2
The federal statute creating a “civil action for deprivation of rights” reads, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory . . ., subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.
42 id. § 1983.

Deficiencies in Second Amended Complaint
Second Amended Complaint:
• names John-Doe defendants, without giving detailed information that would allow them to be
identified.
• raises issues of classification change, possibly akin to administrative segregation, in a way that
does not support a cause of action. (See below.)
GUIDANCE FOR 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).

2

Plaintiff should consider these general points before filing an amended complaint:
(1) The revised complaint must stand entirely on its own and shall not refer to, or
incorporate by reference, any portion of past complaints. See Murray v. Archambo, 132 F.3d
609, 612 (10th Cir. 1998) (stating amended complaint supersedes original). The amended
complaint may also not be added to after it is filed without moving for amendment.3
(2) 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, 338 F. App’x 757, 759 (10th Cir. 2009)
(unpublished) (emphasis in original) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th
Cir. 2008)). Plaintiff should also include, as much as possible, specific dates or at least estimates
of when alleged constitutional violations occurred.
(3) Each cause of action, together with the facts and citations that directly support it,
should be stated separately. Plaintiff should be as brief as possible while still using enough words
to fully explain the “who,” “what,” “where,” “when,” and “why” of each claim.

3

The rule on amending a pleading reads:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading
once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21
days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its
pleadings only with the opposing party’s written consent or the court’s
leave. The court should freely give leave when justice so requires.
Fed. R. Civ. P. 15.

3

(4) Plaintiff may not 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).
(5) Grievance denial alone with no connection to “violation of constitutional rights
alleged by plaintiff, does not establish personal participation under § 1983." Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
(6) “No action shall be brought with respect to prison conditions under . . . Federal law,
by a prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C.S. § 1997e(a) (2019). However, Plaintiff need
not include grievance details in the complaint. Exhaustion of administrative remedies is an
affirmative defense that must be raised by Defendants. Jones v. Bock, 549 U.S. 199, 216 (2007).
• Administrative Segregation
An inmate’s transfer to conditions like administrative segregation does not necessarily
mean that prison administrators were deliberately indifferent to conditions with substantial risk
of serious harm. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). Nor is it, per se, '"atypical
[of] ... the ordinary incidents of prison life."' See Adams v. Negron, 94 F. App’x 676, 678 (10th
Cir. 2004) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995) (unpublished) (holding
placement in highly structured, restrictive prison housing not deliberate indifference). Rather,
"[a]dministrative segregation is the sort of confinement that inmates should reasonably anticipate
receiving at some point in their incarceration." Hewitt v. Helms, 459 U.S. 460, 468 (1983).

4

ORDER
IT IS HEREBY ORDERED that:
(1) Plaintiff must within thirty days cure the Second Amended Complaint’s deficiencies noted
above by filing a document entitled, “Third Amended Complaint.” All defendants and claims
should be included in a third amended complaint, if filed, and will not be treated further by the
Court unless properly included. This is the fifth and FINAL order allowing Plaintiff to cure
deficiencies. If a third amended complaint is filed, the Court will screen it for dismissal or
service of process.
(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 shall not try to serve a third amended complaint on Defendants; instead the Court
will perform its screening function and determine itself whether the complaint warrants service.
No motion for service of process is needed. See 28 U.S.C.S. § 1915(d) (2019) (“The officers of
the court shall issue and serve all process, and perform all duties in [in forma pauperis] cases.”).
DATED this 13th day of November, 2019.
BY THE COURT:

CHIEF JUDGE ROBERT J. SHELBY
United States District Court

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