Oblad v. Crowther et al

Filing 70

MEMORANDUM DECISION AND ORDER to show Cause Regarding Failure to Xure Deficient Second Amended Complaint. Plaintiff must within thirty days show cause why this case should not be dismissed because he has not, as required, cured the Se cond Amended Complaints deficiencies noted in order. If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. Denying 68 Plaintiffs motion for stay and for the Court to transfer exhibits to the state court and to make exhibits available to him. Signed by Judge Jill N. Parrish on 8/5/2019. Clerks Office mailed Plaintiff the Pro Se Litigant Guide with a form civil-rights complaint.(jds)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
BRIAN OBLAD,
Plaintiff,
v.
LORI SMITH et al.,

MEMORANDUM DECISION & ORDER
TO SHOW CAUSE REGARDING
FAILURE TO CURE DEFICIENT
SECOND AMENDED COMPLAINT
Case No. 2:17-CV-102-JNP

Defendants.

District Judge Jill N. Parrish

• February 10, 2017

Submission of prisoner civil-rights complaint. (Doc. No. 3.)

• January 3, 2018

Order granting Plaintiff’s motion to amend his complaint, giving guidance
on amending the complaint, and denying two motions for appointed
counsel. (Doc. No. 48.)

• July 3, 2018

Order screening Amended Complaint, (Doc. No. 49), requiring Plaintiff to
cure the deficiencies in a second amended complaint, giving guidance on
amending the complaint, and denying Plaintiff’s third and fourth motions
for appointed counsel. (Doc. No. 54.)

• July 19, 2018

Order granting sixty-day extension to file second amended complaint.
(Doc. No. 57.)

• August 20, 2018

Second Amended Complaint filed. (Doc. No. 60.)

• May 8, 2019

Order screening Second Amended Complaint, requiring Plaintiff to cure
deficiencies in a third amended complaint (due June 7, 2019), and giving
guidance on amending the complaint. (Doc. No. 65.)

• May 29, 2019

Filing of Plaintiff’s motion to stay and to transfer all exhibits from this
case to state court. (Doc. No. 68.)

Plaintiff’s motion to stay is not well founded. It is based on his “transition[] out of the
prison to the streets.” (Id.) However, the court has been patiently trying to get a valid complaint

on the docket for over two years now, all the while providing guidance and resources. Plaintiff
has had plenty of time to get this done; thus, his motion is denied.
Plaintiff’s motion for the court to “transfer exhibits filed in this case to be taken to 3d
District Court . . . [and] make exhibits & documents available to [Plaintiff]” is also denied. There
are six docket entries of exhibits, totaling 134 pages and an audio disc. This is a burdensome
request without any support; his motion is therefore denied.
FINAL EXPLANATION OF 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).
(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.
FINAL 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

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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. 1

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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.

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(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.
(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).

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• Heck
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.

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• 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.
ORDER
IT IS HEREBY ORDERED that:
(1) Plaintiff must within thirty days show cause why this case should not be dismissed because
he has not, as required, cured the Second Amended Complaint’s deficiencies noted above.
Plaintiff should best respond by curing deficiencies and filing a document entitled, “Second
Amended Complaint.”
(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.

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(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.”).
(5) Plaintiff’s motion for stay and for the Court to transfer exhibits to the state court and to make
exhibits available to him is DENIED. (Doc. No. 68.)
DATED August 5, 2019.
BY THE COURT:

JUDGE JILL N. PARRISH
United States District Court

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