Sanchez v. Lyman et al

Filing 26

MEMORANDUM DECISION AND ORDER TO CURE DEFICIENT COMPLAINT. IT IS HEREBY ORDERED that: Plaintiff must within thirty days cure the Complaints deficiencies. If Plaintiff fails to timely cure the deficiencies according to this Order' s instructions, this action will be dismissed without further notice. THE COURT WILL NOT ACCEPT ANY FILINGS FROM PLAINTIFF EXCEPT FOR AN AMENDED COMPLAINT UNTIL FURTHER FILINGS ARE SPECIFICALLY INVITED BY THE COURT. The Clerks Office is ordered to return to sender any attempted filing except for an amended complaint until further notice by the Court. Signed by Judge Dale A. Kimball on 5/24/2019. (jds)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
GREG PAUL REVERE SANCHEZ,
Plaintiff,
v.
JUDGE PAUL LYMAN et al.,
Defendants.

MEMORANDUM DECISION
& ORDER TO CURE
DEFICIENT COMPLAINT
Case No. 2:18-CV-69-DAK
District Judge Dale A. Kimball

Plaintiff, inmate Greg Paul Revere Sanchez, brings this pro se civil-rights action, see 42
U.S.C.S. § 1983 (2019),1 in forma pauperis, see 28 id. § 1915. Having now screened the
Complaint, (Doc. No. 6), under its statutory review function,2 the Court orders Plaintiff to file an
amended complaint to cure deficiencies before further pursuing claims.

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The federal statute creating a “civil action for deprivation of rights” reads, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory . . ., subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s judicial capacity,
injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.
42 U.S.C.S. § 1983 (2019).
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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
complaint—
(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
such relief.
28 U.S.C.S. § 1915A (2019).

COMPLAINT’S DEFICIENCIES
Complaint:
(a) does not properly affirmatively link defendants to civil-rights violations.
(b) inappropriately requests relief for a third party.
(c) is perhaps supplemented with claims from letters and documents filed since the Complaint,
which claims should be included in an amended complaint, if filed, and will not be treated
further by the Court unless properly included.
(d) improperly names judges as defendants, apparently without considering judicial immunity.
(See below.)
(e) improperly names prosecutors as defendants, apparently without considering prosecutorial
immunity. (See below.)
(f) alleges possible constitutional violations resulting in injuries that appear to be prohibited by
42 U.S.C.S. § 1997e(e) (2019), which reads, "No Federal civil action may be brought by a
prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of
a physical injury or the commission of a sexual act.”
(g) does not adequately state a claim of inadequate medical treatment. (See below.)
(h) tries to bring civil-rights claims against possible public defenders and private attorneys and
citizens, who are not properly named, as they are not state actors under § 1983.
(i) possibly asserts claims on the constitutional validity of his imprisonment, which should be
brought in a habeas-corpus petition, not civil-rights complaint.
(j) asserts claims possibly invalidated by the rule in Heck. (See below.)
(k) states crimes by Defendants must be redressed; however, a federal civil-rights is not the
proper place to address criminal behavior.
(l) has claims apparently regarding current confinement; however, complaint apparently not
drafted with contract attorneys’ help.
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

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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 meeting 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.3

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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) Each cause of action, together with the facts and citations that directly support it,
should be stated separately. Plaintiff should be as brief as possible while still using enough words
to fully explain the “who,” “what,” “where,” “when,” and “why” of each claim.
(4) 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).
(5) 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).
(6) “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). However, Plaintiff need
not include grievance details in his complaint. Exhaustion of administrative remedies is an
affirmative defense that must be raised by Defendants. Jones v. Bock, 549 U.S. 199, 216 (2007).

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• 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 here very well may have been acting in a judicial capacity in presiding over
Plaintiff’s case(s); if so, such actions are entitled to absolute immunity. See Doran v. Sanchez,
No. 08-2042, 2008 U.S. App. LEXIS 17987, at *2 (10th Cir. Aug. 19, 2008) (unpublished).
• Prosecutorial Immunity
A prosecutor acting within the scope of his duties enjoys absolute immunity from suit
under § 1983. Imbler v. Pachtman, 424 U.S. 409, 424 (1976). The prosecutors’ acts, as alleged
by Plaintiff, appear to relate to advocacy before the court. These defendants therefore may be
entitled to absolute prosecutorial immunity from this lawsuit.
• Inadequate Medical Treatment
The Eighth Amendment’s ban on cruel and unusual punishment requires prison officials
to “provide humane conditions of confinement” including “adequate . . . medical care.” Craig v.
Eberly, 164 F.3d 490, 495 (10th Cir. 1998)) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1310
(10th Cir. 1998)). To state a cognizable claim under the Eighth Amendment for failure to provide
proper medical care, “a prisoner must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.
1993) (emphasis in original) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

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Any Eighth Amendment claim must be evaluated under objective and subjective prongs:
(1) “Was the deprivation sufficiently serious?” And, if so, (2) “Did the officials act with a
sufficiently culpable state of mind?” Wilson v. Seiter, 501 U.S. 294, 298 (1991).
Under the objective prong, a medical need is “sufficiently serious . . .if it is one that has
been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention.” Sealock, 218 F.3d at 1209
(citations & quotation marks omitted).
The subjective component requires the plaintiff to show that prison officials were
consciously aware that the prisoner faced a substantial risk of harm and wantonly disregarded the
risk “by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847
(1994). “[T]he ‘inadvertent failure to provide adequate medical care’ tantamount to negligence
does not satisfy the deliberate indifference standard.” Sparks v. Singh, 690 F. App’x 598, 604
(10th Cir. 2017) (unpublished) (quoting Estelle v. Gamble, 429 U.S. 97, 105–06 (1976)).
Furthermore, “a prisoner who merely disagrees with a diagnosis or a prescribed course of
treatment does not state a constitutional violation.” Perkins v. Kan. Dep’t of Corrs., 165 F.3d
803, 811 10th Cir. 1999); see also Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010)
(“Disagreement with a doctor’s particular method of treatment, without more, does not rise to the
level of an Eighth Amendment violation.”).
• Heck
Plaintiff's claims appear to include some allegations that if true may invalidate his
conviction or sentence. "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

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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 his constitutional rights were breached in a way that may attack
Petitioner's very imprisonment. Heck requires that, if 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.
ORDER
IT IS HEREBY ORDERED that:
(1) Plaintiff must within thirty days cure the Complaint’s deficiencies noted above by filing a
document entitled, “Amended Complaint,” that is no more than twenty pages long and does not
refer to or include any other document.

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(2) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a blank-form civilrights complaint which Plaintiff must use if he wishes to pursue 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.
(4) Plaintiff shall not try to serve the amended complaint on Defendants; instead the Court will
perform its screening function and determine itself whether the amended 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) THE COURT WILL NOT ACCEPT ANY FILINGS FROM PLAINTIFF EXCEPT
FOR AN AMENDED COMPLAINT UNTIL FURTHER FILINGS ARE SPECIFICALLY
INVITED BY THE COURT. The Clerk’s Office is ordered to return to sender any attempted
filing except for an amended complaint until further notice by the Court. This is made necessary
by the overwhelming nature of Plaintiff’s uninvited voluminous, vexatious and repetitive filings
in the two cases he has brought before this Court so far.
DATED this 24th day of May, 2019.
BY THE COURT:

JUDGE DALE A. KIMBALL
United States District Court

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