Oblad v. Crowther et al

Filing 48

MEMORANDUM DECISION & ORDER: granting 43 Plaintiff's motion for permission to amend his Complaint. Plaintiff shall file his amended complaint within thirty days. All other of Plaintiffs motions in this case are DENIED. Denying 42 Motion ; denying 45 Motion for Hearing; denying 46 Motion for Extension of Time; denying 47 Motion for Extension of Time; denying 5 Motion ; denying 7 Motion to Appoint Counsel ; denying 7 Motion ; denying 8 Motion for Hearing; denying 9 Motion ; denying 9 Motion to Appoint Counsel ; denying 30 Motion in Limine; denying 33 Motion ; denying 34 Motion to Dismiss Party. ; denying 35 Motion for Partial Summary Judgment; denying 37 Motion for Partial Summary Judgment; denying 38 Motion for Declaratory Judgment; denying 38 Motion for Preliminary Injunction; denying 39 Motion for Extension of Time. Signed by Judge Jill N. Parrish on 1/3/2018. (jds)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH BRIAN OBLAD, Plaintiff, MEMORANDUM DECISION & ORDER v. SCOTT CROWTHER at el., Case No. 2:17-CV-102-JNP Defendants. District Judge Jill N. Parrish Plaintiff, Brian Oblad, moves the Court to allow him to amend his Complaint. 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. Finally, Plaintiff has flooded the Court with correspondence and motions that potentially raise other claims and name other defendants. Any claim or defendant from that correspondence that Plaintiff intends to pursue in this case must be formally set forth in his amended complaint. 2 The Court will not further consider any of the claims or defendants outside of the amended complaint. MOTIONS FOR APPOINTED COUNSEL 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 inmates. 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 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 motions for appointed counsel. ORDER IT IS HEREBY ORDERED that: 3 (1) Plaintiff's motion for permission to amend his Complaint is GRANTED. (See Docket Entry # 43.) Plaintiff shall file his amended complaint within thirty 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 motions for appointed counsel are DENIED, (see Docket Entry #s 7 & 9); 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) All other of Plaintiff’s motions in this case are DENIED. (See Docket Entry #s 5, 7 (as to wearing his own clothing in the courtroom), 8, 9 (as to waiver of copy fees), 30, 33, 34, 35, 37, 38, 39, 42, 45, 46 and 47.) These are all premature or moot, based on the pending amended complaint. (5) Plaintiff shall file no further documents or motions until he has submitted an amended complaint. DATED January 3, 2017. BY THE COURT: JUDGE JILL N. PARRISH United States District Court 4

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