Norman v. Johnson et al

Filing 8

ORDER TO CURE DEFICIENT COMPLAINT & MEMORANDUM DECISION: denying 7 Motion for Service of Process (Prisoner). Plaintiff must within thirty days cure the Complaint's deficiencies noted. The Clerk's Office shall mail Plainti ff the Pro Se Litigant Guide with a form complaint and habeas petition for Plaintiff to use should Plaintiff choose to file an amended complaint. 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 Clark Waddoups on 08/27/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JAMES C. NORMAN,

ORDER TO CURE DEFICIENT
COMPLAINT & MEMORANDUM
DECISION

Plaintiff,
v.
STATE OF UTAH et al.,

Case No. 2:17-CV-941-CW

Defendants.

District Judge Clark Waddoups

Plaintiff, James C. Norman, housed at the Utah State Hospital, filed this pro se civil
rights suit, see 42 U.S.C.S. § 1983 (2018), in forma pauperis, see 28 id. § 1915. The Court now
screens the Complaint and orders Plaintiff to file an amended complaint to cure deficiencies
before further pursuing claims.
A. Deficiencies in Complaint
Complaint:
(a) improperly names a judge as a defendant, without considering judicial immunity.
(See below.)
(b) possibly alleges claims that concern the constitutionality of his imprisonment, which
should be brought in a habeas-corpus petition, not a civil-rights complaint.
(c) alleges claims that are possibly invalidated by the rule in Heck. (See below.)
(d) names State of Utah as a defendant which is in violation of governmental immunity
principles. (See below.)
(e) has claims appearing to be based on conditions of current confinement; however, the
complaint was apparently not submitted using the legal help Plaintiff is entitled to by
his institution under the Constitution. See Lewis v. Casey, 518 U.S. 343, 356 (1996)
(requiring prisoners be given "'adequate law libraries or adequate assistance from
persons trained in the law' . . . to ensure that inmates . . . have a reasonably adequate

opportunity to file nonfrivolous legal claims challenging their convictions or
conditions of confinement") (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)
(emphasis added)).
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 Plaintiff’s 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).

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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,
2009).
• Judicial Immunity
It is well settled that judges "are absolutely immune from suit unless they act in 'clear
absence of all jurisdiction,' meaning that even erroneous or malicious acts are not proper bases
for § 1983 claims." Segler v. Felfam Ltd. P'ship, No. 08-1466, 2009 U.S. App. LEXIS 10152, at
*4 (10th Cir. May 11, 2009) (unpublished) (quoting Stump v. Sparkman, 435 U.S. 349, 356-57
(1978)). The judges in the claims here very well may have been acting in a judicial capacity in
presiding over Plaintiff’s case(s); if so, those actions would be entitled to absolute immunity. See

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Doran v. Sanchez, No. 08-2042, 2008 U.S. App. LEXIS 17987, at *2 (10th Cir. Aug. 19, 2008)
(unpublished).
• Heck
Further, the Court concludes that Plaintiff's claims appear to involve some allegations
that if true may invalidate his continued imprisonment. "In Heck, the Supreme Court explained
that a § 1983 action that would impugn the validity of a plaintiff's underlying conviction cannot
be maintained unless the conviction 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 prevents
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 violated his constitutional rights in a way that may attack
Petitioner's very imprisonment. Heck requires that, when a plaintiff requests damages in a § 1983
suit, this Court must decide whether judgment in the plaintiff's favor would unavoidably imply
that his continued imprisonment is invalid. Id. at 487. Here, it appears it may regarding 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 continued imprisonment is not valid. Thus,
the involved claims "must be dismissed unless the plaintiff can demonstrate that his continued

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imprisonment has already been invalidated." Id. This has apparently not happened and may result
in dismissal of such claims.
• State Immunity
Finally, regarding claims that have been made against the State, generally, the Eleventh
Amendment prevents "suits against a state unless it has waived its immunity or consented to suit,
or if Congress has validly abrogated the state's immunity." Ray v. McGill, No. CIV-06-0334-HE,
2006 U.S. Dist. LEXIS 51632, at *8 (W.D. Okla. July 26, 2006) (unpublished) (citing Lujan v.
Regents of Univ. of Cal., 60 F.3d 1511, 1522 (10th Cir. 1995); Eastwood v. Dep't of Corrs., 846
F.2d 627, 631 (10th Cir. 1988)). Plaintiff asserts no basis for determining that the State has
waived its immunity or that it has been abrogated by Congress. Because any claims against the
State appear to be precluded by Eleventh Amendment immunity, the Court believes it has no
subject-matter jurisdiction to consider them. See id. at *9.
ORDER
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 the Pro Se Litigant Guide with a form complaint and
habeas petition for Plaintiff to use should Plaintiff choose to file an 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.

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(4) Plaintiff’s motion for service of process is DENIED. (See Doc. No. 7.) There is currently no
valid complaint on file to be served.
DATED this 27th day of August, 2018.
BY THE COURT:

Clark Waddoups
United States District Court Judge

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