Medina v. Department of Corrections et al
Filing
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MEMORANDUM DECISION AND ORDER to Cure Deficient Complaint and denying 13 Motion to Appoint Counsel. IT IS HEREBY ORDERED that: Plaintiff must within thirty days cure the Complaints deficiencies noted above by filing a document ent itled, 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. 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. The Clerk of Court shall take note that no further motions for appointed counsel will be accepted by the Court. The Clerk of Court shall take note that no further motions for appointed counsel will be accepted 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
HILARIO MEDINA,
Plaintiff,
v.
ROLLIN COOK,
MEMORANDUM DECISION
& ORDER TO CURE
DEFICIENT COMPLAINT
Case No. 2:18-CV-148-DAK
Defendant.
District Judge Dale A. Kimball
Plaintiff, inmate Hilario Medina, 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. 5), under its statutory review function,2 the Court orders Plaintiff to file an amended
complaint to cure deficiencies before further pursuing claims.
1
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).
2
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 defendant to civil-rights violation.
(b) appears to inappropriately allege civil-rights violations on respondeat-superior theory.
(c) shows confusion about how to state a claim of failure to protect. (See below.)
(d) has claims apparently regarding current confinement; however, complaint seems not to have
been 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
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).
2
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 filing without moving for amendment.3
(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.
3
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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(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 Defendant. Jones v. Bock, 549 U.S. 199, 216 (2007).
• Failure to Protect
Plaintiff should consider the following information as he considers an amended
complaint:
“A prison official's deliberate indifference to a substantial risk of
serious harm to an inmate violates the Eighth Amendment."
Farmer v. Brennan, 511 U.S. 825, 828 (1994) (internal quotation
marks omitted). These claims include both an objective and a
subjective component. Estate of Booker v. Gomez, 745 F.3d 429,
430 (10th Cir. 2014) (internal quotation marks omitted) (medical
needs); Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir.
1996) (failure to protect).
....
For the objective component of a failure-to-protect claim, the
prisoner "must show that he is incarcerated under conditions
posing a substantial risk of serious harm." Riddle, 83 F.3d at
1204 (internal quotation marks omitted). "A prisoner has a right to
be reasonably protected from constant threats of violence . . . from
other inmates." Id. (internal quotation marks omitted).
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For the subjective component . . ., the prisoner must present
"evidence of the prison official's culpable state of mind. He must
show that the prison official acted or failed to act despite his
knowledge of a substantial risk of serious harm." Estate of Booker,
745 F.3d at 430 (citation and internal quotation marks omitted)
(medical needs); see Riddle, 83 F.3d at 1204 (failure to protect).
"[T]he official must have been both aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must have also drawn the inference." Requena v.
Roberts, 893 F.3d 1195, 1215 (10th Cir. 2018) (brackets, ellipsis,
and internal quotation marks omitted).
In addition to the objective and subjective components of
these Eighth Amendment claims, a § 1983 "plaintiff must show the
defendant personally participated in the alleged violation, and
conclusory allegations are not sufficient to state a constitutional
violation." Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996)
(citation omitted).
Gray v. Sorrels, 744 F. App’x 563, 568 (10th Cir. 2018) (unpublished)
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.”
(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
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officers of the court shall issue and serve all process, and perform all duties in [in forma
pauperis] cases.”).
(5) Plaintiff's second motion for appointed counsel, (Doc. No. 13), is DENIED, for the same
reasons stated in a prior order in this case denying appointment of voluntary pro bono counsel,
(Doc. No. 4). As the Court said in that prior order, “[I]f, after the case is screened, it appears that
counsel may be needed or of specific help, the Court may ask an attorney to appear pro bono on
Plaintiff’s behalf.” (Id. at 3.) This is an ongoing inquiry that requires no further prompting from
Plaintiff. The Clerk of Court shall take note that no further motions for appointed counsel
will be accepted by the Court.
DATED this 24th day of May, 2019.
BY THE COURT:
JUDGE DALE A. KIMBALL
United States District Court
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