Killough v. Burnham et al, No. 2:2018cv00250 - Document 33 (D. Utah 2020)
Court Description: MEMORANDUM DECISION & ORDER GRANTING MOTION TO AMEND SECOND COMPLAINT: granting 32 Motion to Amend/Correct. Plaintiff has Thirty Days to amended SAC by filing a single document entitled, Third Amended Complaint. The Clerks Office shall mail Plaintiff the ProSe Litigant Guide with a blank form civil rights complaint which Plaintiff must use to pursue a third amended complaint. Signed by Judge Clark Waddoups on 11/3/2020. (kpf)
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Killough v. Burnham et al Doc. 33 Case 2:18-cv-00250-CW Document 33 Filed 11/03/20 PageID.177 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH MATT KILLOUGH, Plaintiff, v. MEMORANDUM DECISION & ORDER GRANTING MOTION TO AMEND SECOND AMENDED COMPLAINT BRUCE O. BURNHAM at el., Case No. 2:18-CV-250-CW Defendants. District Judge Clark Waddoups On October 29, 2020, Plaintiff filed a letter stating, “Since I filed this complain [sic], the prison finally gave me a back surgery for the injury they inflicted on me. However, it didn’t help none with the pain and now I have less movement in my back. How do I make the judge aware of this?” (ECF No. 32.) The Court construes this as a motion to amend his second amended complaint (SAC) and grants it. Should Plaintiff wish to amend his SAC to include any claims based on his letter’s statement, the Court provides the following guidance for Plaintiff to use in amending the SAC. 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). Dockets.Justia.com Case 2:18-cv-00250-CW Document 33 Filed 11/03/20 PageID.178 Page 2 of 4 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 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). (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 2 Case 2:18-cv-00250-CW Document 33 Filed 11/03/20 PageID.179 Page 3 of 4 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."). (4) Plaintiff may not name an individual as a defendant based solely on the person’s 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) (2020). However, Plaintiff need 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). ORDER IT IS HEREBY ORDERED that: (1) Plaintiff’s motion to amend his SAC is GRANTED. (ECF No. 32.) (2) Plaintiff must within thirty days amend SAC by filing a single document entitled, “Third Amended Complaint.” All defendants and claims should be included in a third amended complaint, if filed, and will not be treated further by the Court unless properly included. This is 3 Case 2:18-cv-00250-CW Document 33 Filed 11/03/20 PageID.180 Page 4 of 4 the FINAL order allowing Plaintiff to amend his complaint. If a third amended complaint is filed, the Court will screen it for dismissal or service of process. (3) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a blank-form civilrights complaint which Plaintiff must use to pursue a third amended complaint. (4) Plaintiff shall not try to serve Third 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) (2020) (“The officers of the court shall issue and serve all process, and perform all duties in [in forma pauperis] cases.”). DATED this 3rd day of November, 2020. BY THE COURT: JUDGE CLARK WADDOUPS United States District Court 4
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