Losee v. Preece et al, No. 2:2018cv00195 - Document 27 (D. Utah 2019)

Court Description: Memorandum Decision & Order granting Motion to Dismiss and Requiring Curing of Deficient Amended Complaint. It is ordered Defendant's Motion to Dismiss Amended Complaint is granted 23 Motion to Dismiss for Failure to State a C laim. Plaintiff must within thirty days cure Amended Complaint's deficiencies noted by filing a document entitled SECOND AMENDED COMPLAINT. The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a blank form civil rights com plaint which Plaintiff must use if Plaintiff wishes to pursue 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. Plai ntiff shall not try to serve 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. Signed by Judge Tena Campbell on 11/13/2019. (kpf)

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s 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). 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) 7 ORDER IT IS HEREBY ORDERED that: (1) Defendants’ Motion to Dismiss Amended Complaint is GRANTED. (Doc. No. 23.) (2) Plaintiff must within thirty days cure Amended Complaint’s deficiencies noted above by filing a document entitled, “Second Amended Complaint.” (3) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a blank-form civil- rights complaint which Plaintiff must use if Plaintiff wishes to pursue a second amended complaint. (4) If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. (5) Plaintiff shall not try to serve 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.”). DATED this 13th day of November, 2019. BY THE COURT: JUDGE TENA CAMPBELL United States District Court 8

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