Taylor v. State of Utah

Filing 30

MEMORANDUM DECISION & ORDER TO AMEND DEFICIENT AMENDED PETITION:It is hereby ordered that: Petitioner shall have THIRTY DAYS from the date of this order to cure the deficiencies noted. The Clerk's Office shall mail Petitioner a c opy of the Pro Se Litigant Guide with a proper form petition and/or civil rights complaint for him to complete, according to the directions. If Petitioner fails to timely cure the above noted deficiencies, as instructed here, this action will be dismissed without further notice. Denying 25 2nd Motion for Preliminary Injunction and Motion for TRO. Signed by Judge Clark Waddoups on 11/15/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

ROY D. TAYLOR
Petitioner,
v.

MEMORANDUM DECISION &
ORDER TO AMEND DEFICIENT
AMENDED PETITION
Case No. 2:18-CV-8-CW

STATE OF UTAH,

District Judge Clark Waddoups
Respondent.

Petitioner, Roy D. Taylor, an inmate at Utah State Prison, filed an amended pro se
habeas-corpus petition. See 28 U.S.C.S. § 2254 (2018). Reviewing the Amended Petition, (Doc
No. 27), the Court concludes that it must be amended to cure the below deficiencies if Petitioner
wishes to further pursue his claims.
DEFICIENCIES IN AMENDED PETITION
Amended Petition:
(a)

is not on the form required by and provided to Petitioner by this Court.

(c)

has claims appearing to be based on the illegality of Petitioner's current confinement;
however, the petition was apparently not submitted using the legal help Petitioner is
entitled to by his institution under the Constitution--e.g., by contract attorneys. 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)).

REPEATED INSTRUCTIONS TO PETITIONER
Under Rule 8 of the Federal Rules of Civil Procedure an initial pleading 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 [respondents] 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), 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 [litigant] 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 [petitioner] that assumes facts that have not been pleaded." Dunn v.
White, 880 F.2d 1188, 1197 (10th Cir. 1989).
Petitioner should consider the following general points before refiling his petition. First,
the revised petition must stand entirely on its own and shall not refer to, or incorporate by
reference, any portion of the original or first amended petition or any other documents
previously filed by Petitioner. See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998)
(amendment supersedes original). Second, Petitioner must clearly state whom his custodian is
and name that person (a warden or ultimate supervisor of an imprisonment facility) as the

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respondent. See R. 2, Rs. Governing § 2254 Cases in the U.S. Dist. Courts. Third, Petitioner may
generally not bring civil-rights claims as to the conditions of his confinement in a habeas-corpus
petition. Fourth, any claims about Petitioner's underlying conviction and/or sentencing should be
brought under 28 U.S.C.S. § 2254 (2017); any claims about the execution of Petitioner's sentence
should be brought under id. § 2241. Fifth, Petitioner should seek help to prepare initial pleadings
from legal resources (e.g., contract attorneys) available where he is held.
PRELIMARY INJUNCTIVE RELIEF
The Court evaluates Petitioner's second and repetitive motion for preliminary injunctive
relief. Again, Petitioner appears to merely be trying to expedite the relief he seeks in his petition.
This type of injunction is disfavored by the law. See SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d
1096, 1098-99 (10th Cir. 1991).
Further, Petitioner has not specified adequate facts showing each of the four elements
necessary to obtain a preliminary injunctive order:
"(1) a substantial likelihood of prevailing on the merits; (2)
irreparable harm in the absence of the injunction; (3) proof that the
threatened harm outweighs any damage the injunction may cause
to the party opposing it; and (4) that the injunction, if issued, will
not be adverse to the public interest."
Brown v. Callahan, 979 F. Supp. 1357, 1361 (D. Kan. 1997) (quoting Kan. Health Care Ass'n v.
Kan. Dep't of Soc. and Rehab. Servs., 31 F.3d 1536, 1542 (10th Cir. 1994)).
Preliminary injunctive relief is an extraordinary and drastic remedy to be granted only
when the right to relief is "clear and unequivocal." SCFC ILC, Inc., 936 F.2d at 1098. The Court
has carefully reviewed Petitioner's pleadings and motions for injunctive relief and concludes
Petitioner's claims do not rise to such an elevated level that an emergency injunction is

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warranted. In sum, Petitioner has not met the heightened pleading standard required in moving
for an emergency injunction.
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
(1) Petitioner shall have THIRTY DAYS from the date of this order to cure the
deficiencies noted above.
(2) The Clerk's Office shall mail Petitioner a copy of the Pro Se Litigant Guide with a
proper form petition and/or civil-rights complaint for him to complete, according to the
directions.
(3) If Petitioner fails to timely cure the above-noted deficiencies, as instructed here, this
action will be dismissed without further notice.
(4) Petitioner's second motion for preliminary injunctive relief is DENIED. (See Doc.
No. 25.)
DATED this 15th day of November, 2018.
BY THE COURT:

JUDGE CLARK WADDOUPS
United States District Court

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