Humes v. Salt Lake City

Filing 13

MEMORANDUM DECISION AND ORDER: Plaintiff must within 30 days cure the Amended Complaint's deficiencies by filing a Second 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 Jill N. Parrish on 1/14/20 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JON HUMES,
Plaintiff,
v.
SALT LAKE CITY,

MEMORANDUM DECISION
& ORDER TO CURE
DEFICIENT AMENDED COMPLAINT
Case No. 2:18-cv-160-JNP

Defendant.

District Judge Jill N. Parrish

Plaintiff, inmate Jon Humes, brings this pro se civil-rights action under 42 U.S.C. § 1983
in forma pauperis under 28 U.S.C. § 1915. Having now screened the Amended Complaint, (Doc.
No. 9), under its statutory review function, see 28 U.S.C. § 1915A,1 the Court orders Plaintiff to
file a second amended complaint to cure deficiencies before further pursuing claims.
AMENDED COMPLAINT’S DEFICIENCIES
The court has identified several deficiencies with Plaintiff’s Amended Complaint including
that it:
(a) does not properly affirmatively link Defendant to civil-rights violations;
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28 U.S.C. § 1915A states:
(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.

(b) states § 1983 claims in violation of municipal-liability doctrine (see below);
(c) possibly asserts claims on the constitutional validity of his sentence, which should be
brought in a habeas-corpus petition, not civil-rights complaint;
(d) asserts claims possibly invalidated by the rule in Heck (see below);
(e) asserts claims that are past the statute of limitations for a civil-rights case (see below);
and
(f) 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)).
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 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
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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.2
(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, 759 (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.

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Fed. R. Civ. P. 15(a) reads:
(1) 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.
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(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.3d 1433, 1441 (10th Cir. 1996) (stating
supervisory status alone does not support § 1983 liability).
Municipal Liability
To establish liability of municipal entities, such as Salt Lake City, under § 1983, “a
plaintiff must show (1) the existence of a municipal custom or policy and (2) a direct causal link
between the custom or policy and the violation alleged.” Jenkins v. Wood, 81 F.3d 988, 993–94
(10th Cir. 1996) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989)). Municipal entities
may not be held liable under § 1983 based on the doctrine of respondeat superior. See Cannon v.
City and County of Denver, 998 F.2d 867, 877 (10th Cir. 1993); see also Monell v. Dep't of Soc.
Servs. of N.Y., 436 U.S. 658, 694 (1978).
Plaintiff has not so far established a direct causal link between his alleged injuries and
any custom or policy of Salt Lake City. Thus, the Court concludes that Plaintiff's complaint, as it
stands, appears to fail to state claims against Salt Lake City.
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
incarceration] has been reversed on direct appeal or impaired by collateral proceedings.” Nichols

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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.
Statute of Limitations
“Utah's four-year residual statute of limitations . . . governs suits brought under section
1983.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). Plaintiff's claims accrued when
“‘facts that would support a cause of action are or should be apparent.’” Id. at 675 (citation
omitted. From the face of the amended complaint, the circumstances underlying these claims
appear to have occurred more than four years before this case was filed.

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ORDER
IT IS HEREBY ORDERED that:
(1)

Plaintiff must within thirty days cure the Amended Complaint’s deficiencies noted

above by filing a document entitled, “Second Amended Complaint.”
(2)

The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a blank-form

civil-rights 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 a Second 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.”).

Signed January 14, 2020
BY THE COURT

______________________________
Jill N. Parrish
United States District Court Judge

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