Mazzetti v. Powell et al

Filing 8

MEMORANDUM DECISION AND ORDER to Cure Deficient Complaint. Plaintiff must within thirty days cure the Complaint's deficiencies noted herein. If Plaintiff fails to timely cure the deficiencies according to this Order's instructions, this action will be dismissed without further notice. Signed by Judge Dale A. Kimball on 5/8/2024. (eat)

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
JAMES A. MAZZETTI III,
Plaintiff,
v.

MEMORANDUM DECISION & ORDER
TO CURE DEFICIENT COMPLAINT
Case No. 2:23-CV-725-DAK

ROBERT POWELL et al.,

District Judge Dale A. Kimball

Defendants.
Plaintiff, self-represented inmate James A. Mazzetti III, brings this civil-rights action, see
42 U.S.C.S. § 1983 (2024).1 Having now screened the Complaint, (ECF No. 4), under its
statutory review function, 28 U.S.C.S. § 1915A (2024),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 (2024).
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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.

COMPLAINT'S DEFICIENCIES
Complaint:
(a) names many defendants only in the text, not in the Complaint's heading also, as required.
(b) improperly alleges civil-rights violations on a respondeat-superior theory. (See below.)
(c) does not adequately link each element of a failure-to-protect claim to specific named
defendant(s). (See below.)
(d) does not adequately link each element of claims of improper medical and physical treatment
to specific individually named defendant(s). (See below.)
(e) raises issues of classification change/programming in way that does not support a cause of
action. (See below.)
(f) does not adequately link each element of an equal-protection claim to specific named
defendant(s). See Hale v. Fed. Bureau of Prisons, 759 F. App'x 741, 752 (10th Cir. 2019)
(explaining that--to state equal-protection claim--plaintiff must allege facts showing (a) prison
officials treated him differently from similarly situated inmates and (b) disparate treatment was
not reasonably related to penological interests).
(g) possibly asserts constitutional violations--e.g., "verbal abuse by staff," (ECF No. 4, at 5)-resulting in injuries that appear to be prohibited by 42 U.S.C.S. § 1997e(e) (2024), reading, "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.”
(h) has claims possibly based on current confinement; however, the complaint was possibly not
submitted using legal help Plaintiff is constitutionally entitled to by Plaintiff's institution--i.e., the
prison 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)).
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

28 U.S.C.S. § 1915A (2024).

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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:
(i) The revised complaint must stand entirely on its own and shall not refer to, or
incorporate by reference, any part of the original complaint. See Murray v. Archambo, 132 F.3d
609, 612 (10th Cir. 1998) (stating amended complaint supersedes original). Also an amended
complaint may not be added to after filing without moving for amendment. Fed. R. Civ. P. 15.
(ii) Each defendant must be named in the complaint's caption, listed in the section of the
complaint setting forth names of each defendant, and affirmatively linked to applicable claims
within the "cause of action" section of the complaint.
(iii) The complaint must clearly state what each individual 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

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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.
(iv) 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. Robbins, 519
F.3d at 1248 ("The [Bell Atlantic Corp. v.] Twombly Court was particularly critical of complaints
that 'mentioned no specific, time, place, or person involved in the alleged [claim].' [550 U.S. 544,
565] n.10 (2007). Given such a complaint, 'a defendant seeking to respond to plaintiff's
conclusory allegations . . . would have little idea where to begin.' Id.").
(v) Plaintiff may not name an individual as a defendant based solely on supervisory
position. See Mitchell v. Maynard, 80 F.2d 1433, 1441 (10th Cir. 1996) (stating supervisory
status alone does not support § 1983 liability).
(vi) Grievance denial alone with no connection to "violation of constitutional rights
alleged by plaintiff, does not establish personal participation under § 1983." Gallagher v.
Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
(vii) "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) (2024). However, Plaintiff need

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not include grievance details in the complaint. Exhaustion of administrative remedies is an
affirmative defense that must be raised by defendants. Jones v. Bock, 549 U.S. 199, 216 (2007).
• Respondeat superior
The Supreme Court holds that, in asserting a § 1983 claim against a government agent in
their individual capacity, "a plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal,
556 U.S. 662 676 (2009). Consequently, there is no respondeat superior liability under §
1983. See Iqbal, 556 U.S. at 676 ("Because vicarious liability is inapplicable to Bivens and §
1983 suits, a plaintiff must plead that each Government-official defendant, through the official's
own individual actions, has violated the Constitution."); Bd. of Cty. Comm'rs v. Brown, 520 U.S.
397, 403 (1997). Entities may not be held liable on the sole ground of an employer-employee
relationship with a claimed tortfeasor. See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658,
689 (1978). Supervisors are considered liable for their own unconstitutional or illegal policies
only, and not for employees' tortious acts. See Barney v. Pulsipher, 143 F.3d 1299, 1307-08
(10th Cir. 1998).
• Failure to protect
Here are the standards governing this type of claim:
The Eighth Amendment imposes a duty on prison officials to
provide humane conditions of confinement, including "reasonable
measures to guarantee the safety of the inmates." Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (quotations omitted). This
obligation includes a duty "to protect prisoners from violence at
the hands of other prisoners." Id. at 833 (quotations omitted). "To
prevail on a failure to protect claim, an inmate must show (1) that
the conditions of his incarceration present[ed] an objective
substantial risk of serious harm and (2) prison officials had
subjective knowledge of the risk of harm." Requena v. Roberts,
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893 F.3d 1195, 1214 (10th Cir. 2018) (quotations omitted). To
satisfy the second prong, the inmate must show that the prison
official was deliberately indifferent to the inmate's health or safety.
Farmer, 511 U.S. at 834. A prison official will not be liable unless
he "knows of and disregards an excessive risk to inmate health or
safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference." Id. at 837.
Pittman v. Kahn, No. 23-1153, 2024 U.S. App. LEXIS 3043, at *3-4 (10th Cir. Feb. 9, 2024)
(unpublished).
• 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)).
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).

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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.").
The elements of a cause of action for other physical mistreatment are similar.
• Classification
An inmate’s transfer to different housing or adjustment of privileges (e.g., prison
employment) does not necessarily mean that prison administrators were deliberately indifferent
to conditions with substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 834
(1994); see also Allen v. Raemisch, 603 F. App'x 682, 684 (10th Cir. 2015) (unpublished)
("[P]risoners do not have a protected liberty or property interest in keeping a specific prison job .
. . ."). Nor is it, per se, '"atypical [of] ... the ordinary incidents of prison life."' See Adams v.
Negron, 94 F. App’x 676, 678 (10th Cir. 2004) (quoting Sandin v. Conner, 515 U.S. 472, 484
(1995) (unpublished) (holding placement in highly structured, restrictive prison housing not
deliberate indifference)).

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ORDER
IT IS HEREBY ORDERED as follows:
(1) Plaintiff must within thirty days cure the Complaint's deficiencies noted above by
filing a document entitled, "Amended Complaint," that does not refer to or include any other
document. (ECF No. 4.)
(2) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a blank-form
civil-rights complaint which Plaintiff must use 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) The amended complaint shall not include any claims outside the dates and allegations
of transactions and events contained in the Complaint, filed October 12, 2023, (ECF No. 4). The
Court will not address any such new claims or outside allegations, which will be dismissed. If
Plaintiff wishes to raise other claims and allegations, Plaintiff may do so only in a new complaint
in a new case. If an amended complaint is filed, the Court will screen each claim and defendant
for dismissal or an order effecting service upon valid defendants who are affirmatively linked to
valid claims.
(5) Plaintiff shall not try to serve an amended complaint on any defendants; instead, the
Court will perform its screening function and determine itself whether the amended complaint
warrants service or dismissal (in part or in full). No motion for service of process is needed. See
28 U.S.C.S. § 1915(d) (2024) ("The officers of the court shall issue and serve all process, and
perform all duties in [in forma pauperis] cases.").

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(6) Plaintiff must tell the Court of any address change and timely comply with Court
orders. See D. Utah Civ. R. 83-1.6(b) ("An unrepresented party must immediately notify the
Clerk's Office in writing of any name, mailing address, or email address changes."). Failure to do
so may result in this action's dismissal for failure to prosecute. See Fed. R. Civ. P. 41(b) ("If the
plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move
to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a
dismissal under this subdivision (b) and any dismissal not under this rule--except one for lack of
jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication
on the merits.").
(7) Extensions of time are disfavored, though reasonable extensions may be granted.
Any motion for time extension must be filed no later than fourteen days before the deadline to
be extended.
(8) No direct communication is to take place with any judge. All relevant information,
letters, documents, and papers, labeled with case number, are to be directed to the court clerk.
(9) Plaintiff must observe this District of Utah local rule: "A party proceeding without an
attorney (unrepresented party or pro se party) is obligated to comply with: (1) the Federal Rules

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of Civil Procedure; (2) these Local Rules of Practice; (3) the Utah Standards of Professionalism
and Civility; and (4) other laws and rules relevant to the action." DUCivR 83-1.6(a).
DATED this 8th day of May, 2024.
BY THE COURT:

JUDGE DALE A. KIMBALL
United States District Court

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