Lucero v. Municipal Corp, No. 2:2009cv00101 - Document 24 (D. Utah 2010)
Court Description: MEMORANDUM DECISION AND ORDER TO AMEND DEFICIENT COMPLAINT AND DENYING MOTIONS: IT IS HEREBY ORDERED that: (1) Plaintiff shall have THIRTY DAYS from the date of this order to cure the deficiencies noted above. (2) The Clerk's Office shall mail P laintiff a copy of the Pro Se Litigant Guide. (3) If Plaintiff fails to timely cure the above deficiencies according to the instructions here this action will be dismissedwithout further notice. (4) The following Motions are DENIED. See Order for de tails- denying 4 Motion to Appoint Counsel ; denying 5 Motion for Service of Process (Prisoner). ; denying 10 Motion ; denying 13 Motion to Appoint Counsel ; denying 23 Motion for Service of Process (Prisoner). Signed by Judge Clark Waddoups on 02/21/10. (mas)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION LEONARD JAMES LUCERO, Plaintiff, MEMORANDUM DECISION AND ORDER TO AMEND DEFICIENT COMPLAINT & DENYING MOTIONS v. Case No. 2:09-CV-101 CW MUNICIPAL CORP., District Judge Clark Waddoups Defendant. Plaintiff, Leonard James Lucero, an inmate at Utah State Prison, filed this pro se civil rights suit. 1983 (2010). See 42 U.S.C.S. § Plaintiff was allowed to proceed in forma pauperis. See 28 id. 1915. Reviewing the complaint under § 1915(e), the Court has determined that Plaintiff's complaint is deficient as described below. Deficiencies in Complaint Complaint: (a) states names in caption that do not match names in text. (b) is rambling, confusing, incoherent, and not concise. (c) in naming "Municipal Corp." as the defendant, does not comply with the municipal liability doctrine, as described below. (d) 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)). Instructions to Plaintiff Under Rule 8 of the Federal Rules of Civil Procedure a complaint 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 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), 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 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." 1106, 1009 (10th Cir. 1991). Hall v. Bellmon, 935 F.2d Moreover, "it is not the proper 2 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 plaintiff that assumes facts that have not been pleaded." Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989). Plaintiff should consider the following points before refiling his complaint. First, 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 supercedes original). Second, the complaint must clearly state what each individual defendant 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). Third, Plaintiff cannot 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 is insufficient to support liability under § 1983). Fourth, if Plaintiff's claims relate to the conditions of Plaintiff's current confinement, Plaintiff should seeks help from his institution in preparing initial pleadings. And, fifth, Plaintiff is warned that litigants who have had three 3 in forma pauperis cases dismissed as frivolous or meritless will be restricted from filing future lawsuits without prepaying fees. Finally, to establish the liability of municipal entities, under Section 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 cannot 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., 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 a municipality. Thus, the Court concludes that Plaintiff's Complaint, as it stands, appears to fail to state claims against "Municipal Corp." Motions for Appointed Counsel Plaintiff has no constitutional right to counsel. See Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995); Bee v. Utah State Prison, 823 F.2d 397, 399 (10th Cir. 1987). However, the Court may in its discretion appoint counsel for indigent inmates. See 28 U.S.C.S. § 1915(e)(1) (2010); Carper, 54 F.3d at 617; 4 Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). "The burden is upon the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel." McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). When deciding whether to appoint counsel, the district court should consider a variety of factors, "including 'the merits of the litigant's claims, the nature of the factual issues raised in the claims, the litigant's ability to present his claims, and the complexity of the legal issues raised by the claims.'" Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting Williams, 926 F.2d at 996); accord McCarthy, 753 F.2d at 838-39. Considering the above factors, the Court concludes here that, at this time, Plaintiff's claims may not be colorable, the issues in this case are not complex, and Plaintiff is not at this time too incapacitated or unable to adequately function in pursuing this matter. Thus, the Court denies for now Plaintiff's motions for appointed counsel. ORDER Based on the foregoing, IT IS HEREBY ORDERED that: (1) Plaintiff shall have THIRTY DAYS from the date of this order to cure the deficiencies noted above. 5 (2) The Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide. (3) If Plaintiff fails to timely cure the above deficiencies according to the instructions here this action will be dismissed without further notice. (4) Plaintiff's motions for appointed counsel are DENIED, (see Docket Entry #s 4 & 13); however, if, after the case develops further, it appears that counsel may be needed or of specific help, the Court will ask an attorney to appear pro bono on Plaintiff's behalf. (5) Plaintiff's motions for service of process are DENIED as premature, pending his response to this Order. (See Docket Entry #s 5 & 23.) (6) Plaintiff's motion for waiver of pacer and copy fees is DENIED because he has not stated what copies he needs nor his reasons for needing them. (See Docket Entry # 10.) DATED this 21st day of February, 2010. BY THE COURT: _____________________________ CLARK WADDOUPS United States District Judge 6
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