Oblad v. Crowther et al
MEMORANDUM DECISION AND ORDER denying 62 Motion to Consolidate this case with another case, 2:17-CV-95 DB and ORDER to Cure Deficient Second Amended Complaint. Plaintiff must within thirty days cure the Second Amended Complaints deficiencies noted above. If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. Signed by Judge Jill N. Parrish on 5/8/2019. (jds)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
LORI SMITH et al.,
ORDER TO CURE DEFICIENT
SECOND AMENDED COMPLAINT &
Case No. 2:17-cv-102-JNP
District Judge Jill N. Parrish
Plaintiff, inmate, Brian Olbad, filed this pro se civil rights suit, see 42 U.S.C.S. § 1983
(2019), in forma pauperis, see 28 id. § 1915. Having now screened the Second Amended
Complaint under its statutory review function, id. § 1915A, 1 the Court orders Plaintiff to file a
third amended complaint to cure deficiencies before further pursuing claims.
SECOND AMENDED COMPLAINT’S DEFICIENCIES
Second Amended Complaint:
(a) does not properly affirmatively link defendants to civil-rights violations (e.g., no defendant is
linked to inadequate-medical-treatment claim regarding dental emergency).
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
(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
28 U.S.C.S. § 1915A (2019).
(b) possibly asserts claims regarding the constitutional validity of his imprisonment, which
should be brought in a habeas-corpus petition, not a civil-rights complaint.
(c) asserts claims that are possibly invalidated by the rule in Heck (see below).
(d) fails to state a constitutional claim regarding parole which is not a federal right (see below).
(e) suggests a violation of the rule in Labrum v. Utah State Bd. of Pardons, 870 P.2d 902 (1993);
however, Labrum is Utah law so does not set forth a federal civil-rights cause of action.
(f) does not acknowledge the potential Eleventh Amendment immunity attached to decisions of
the Utah Board of Pardons and Parole.
(g) has claims apparently regarding current confinement; however, the complaint was apparently
not drafted with the help of contract attorneys.
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).
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 the original complaint. 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. 2
(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, (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.
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) 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).
(4) Grievance denial alone with no connection to “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, 2009).
(5) “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).
(6) “No Federal civil action may be brought by a prisoner confined in a jail, prison, or
other correctional facility, for mental or emotional injury suffered while in custody without a
prior showing of physical injury or the commission of a sexual act.” Id. § 1997e(e).
The Court concludes that Plaintiff's claims appear to include some allegations that if true
may invalidate his sentence’s execution. "In Heck, the Supreme Court explained that a § 1983
action that would impugn the validity of a plaintiff's [incarceration] cannot be maintained unless
the [basis for incarceration] has been reversed on direct appeal or impaired by collateral
proceedings." Nichols v. Baer, No. 08-4158, 2009 U.S. App. LEXIS 4302, at *4 (10th Cir. Mar.
5, 2009) (unpublished) (citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). Heck keeps
litigants "from using a § 1983 action, with its more lenient pleading rules, to challenge their
conviction or sentence without complying with the more stringent exhaustion requirements for
habeas actions." Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007) (citation omitted).
Heck clarifies that "civil tort actions are not appropriate vehicles for challenging the validity of
outstanding criminal judgments." 512 U.S. at 486.
Plaintiff argues that Defendants breached his constitutional rights in a way that may
attack Petitioner's very imprisonment. Heck requires that, when a plaintiff requests § 1983
damages, this Court must decide whether judgment for the plaintiff would unavoidably imply
that Plaintiff’s incarceration is invalid. Id. at 487. Here, it appears it may on some claims. If this
Court were to conclude that Plaintiff's constitutional rights were violated in a prejudicial manner,
it would be stating that Plaintiff's incarceration was not valid. Thus, the involved claims "must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been
invalidated." Id. This has apparently not happened and may result in dismissal of such claims.
• Right to Parole
Plaintiff's arguments about lack of due process or fairness in parole procedures involve
BOP's faulty consideration of information in determining whether to grant him parole. This does
not state the violation of a federal constitutional right. After all, "[t]here is no constitutional or
inherent right of a convicted person to be conditionally released before the expiration of a valid
sentence." Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). "Parole
is a privilege," not a constitutional right. See Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir.
1992). Furthermore, it is well established that the Utah parole statute does not create a liberty
interest entitling prisoners to federal constitutional protection. See Malek v. Haun, 26 F.3d 1013,
1016 (10th Cir. 1994). Because Plaintiff has no substantive liberty interest in parole under the
Federal Constitution, he may not in this federal suit challenge procedures used to deny him
parole. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983). Therefore, the Court concludes that
Plaintiff fails to state a claim regarding this issue.
IT IS HEREBY ORDERED that:
(1) Plaintiff must within thirty days cure the Second Amended Complaint’s deficiencies noted
(2) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a form civil-rights
complaint for Plaintiff to use if he wishes to pursue a third amended complaint.
(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 to consolidate this case with another case, 2:17-CV-95 DB, is DENIED.
(Doc. No. 62.) The defendants and claims of each case show no overlap.
DATED May 8, 2019.
BY THE COURT:
JUDGE JILL N. PARRISH
United States District Court
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