Neese v. Cache County Jail et al, No. 1:2018cv00083 - Document 14 (D. Utah 2019)
Court Description: MEMORANDUM DECISION & ORDER TO CURE DEFICIENT COMPLAINT: Plaintiff must within THIRTY DAYS cure the Complaint's deficiencies noted above. The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a form habeas p etition for Plaintiff to use should Plaintiff choose to file an amended petition. If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. Granting 6 Motion to be excused from making copies of his filings to send to the Court with his originals re: complaint. Signed by Judge Ted Stewart on 02/04/2019. (kpf)
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Neese v. Cache County Jail et al Doc. 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH MICHAEL RAY NEESE, Plaintiff, v. CACHE COUNTY JAIL et al., Defendants. ORDER TO CURE DEFICIENT COMPLAINT & MEMORANDUM DECISION Case No. 1:18-CV-83-TS District Judge Ted Stewart Plaintiff, inmate Michael Ray Neese, filed this pro se civil rights suit, see 42 U.S.C.S. § 1983 (2018), in forma pauperis, see 28 id. § 1915. The Court now screens the Complaint and orders Plaintiff to file an amended complaint to cure deficiencies before further pursuing claims. COMPLAINT’S DEFICIENCIES Complaint: (a) alleges possible constitutional violations resulting in injuries that appear to be prohibited by 42 U.S.C.S. § 1997e(e) (2018), which reads, "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.” (b) alleges “random and unauthorized deprivation of property under color of state law,” without considering that such a claim “does not give rise to a § 1983 claim if there is an adequate state post-deprivation remedy.” See Frazier v Flores, No. 13-1535, 2014 U.S. App. LEXIS 12936, at *4 (10th Cir. July 9, 2014) (unpublished) (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984)). (c) does not affirmatively link some defendants to civil-rights violations. (d) appears to inappropriately allege civil-rights violations (e.g., against Jail Commander Peck) on a respondeat-superior theory. (e) improperly names Cache County Jail as a defendant, though it is not an independent legal entity that can sue or be sued. Dockets.Justia.com (f) refers to John-Doe types, without giving detailed enough information to allow them to be identified. (g) states some general claims that do not specify how Plaintiff himself was injured, which calls into question his standing to bring these claims. Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir. 2011) (stating plaintiff must show “(a) an injury in fact; (2) a causal connection between the injury and the challenged action; and (3) a likelihood that a favorable decision will redress the injury”) (citation omitted). (h) does not state a proper legal-access claim. (See below.) (i) does not state a claim for “right to privacy.” (j) inappropriately allege civil-rights violations on the basis of denied grievances. (k) inappropriately asserts a retaliation claim. (See below.) (l) does not allege Plaintiff “was a member of any protected class,” as it must to state an Equal Protection Claim. See Carr v. Zwally, No. 18-1197, 2019 U.S. App. LEXIS 509, at *8 n.5 (10th Cir. Jan. 8, 2019) (unpublished). (m) raises issues of classification change (e.g.,, administrative segregation) in a way that does not support a cause of action. (See below.) 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 2 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 the following points before refiling Plaintiff’s 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 supersedes original). Second, 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, No. 08-2222, slip op. at 4 (10th Cir. July 20, 2009) (unpublished) (emphasis in original) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)). Third, Plaintiff cannot name an individual as a defendant based solely on his or her supervisory position. See Mitchell v. Maynard, 80 F.2d 1433, 1441 (10th Cir. 1996) (stating supervisory status alone does not support § 1983 liability). Fourth, 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). 3 • Legal Access As Plaintiff fashions his amended complaint, he should keep in mind that it is wellrecognized that prison inmates "have a constitutional right to 'adequate, effective, and meaningful' access to the courts and that the states have 'affirmative obligations' to assure all inmates such access." Ramos v. Lamm, 639 F.2d 559, 583 (10th Cir. 1980). In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court expounded on the obligation to provide access to the Courts by stating "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id. at 828 (footnote omitted & emphasis added). However, to successfully assert a constitutional claim for denial of legal access a plaintiff must allege not only inadequacy of the library or legal help but also "that the denial of legal resources hindered [Plaintiff's] efforts to pursue a nonfrivolous claim." Penrod v. Zavaras, 84 F.3d 1399, 1403 (10th Cir. 1996) (emphasis added); Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995). In other words, Plaintiff must show "that any denial or delay of access to the court prejudiced him in pursuing litigation." Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996). Moreover, the non-frivolous litigation involved must be "habeas corpus or civil rights actions regarding current confinement." Carper, 54 F.3d at 616; accord Lewis v. Casey, 518 U.S. 343, 353-55 (1996). • Retaliation "It is well-settled that '[p]rison officials may not retaliate against or harass an inmate because of the inmate’s exercise of his right of access to the courts.'" Gee v. Pacheco, 627 4 F.3d 1178, 1189 (10th Cir. 2010) (quoting Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990)). To show retaliation, Plaintiff must prove three elements: (1) Plaintiff was involved in "constitutionally protected activity"; (2) Defendants' behavior injured Plaintiff in a way that "would chill a person of ordinary firmness from continuing to engage in that activity"; and (3) Defendants' injurious behavior was "substantially motivated" as a reaction to Plaintiff's constitutionally protected conduct. Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). • Administrative Segregation An inmate’s transfer to administrative segregation resulting does not necessarily mean that prison administrators were deliberately indifferent to conditions with a substantial risk of serious harm. Se Farmer v. Brennan, 511 U.S. 825, 834 (1994). Nor is it, per se, '"atypical [of] ... the ordinary incidents of prison life."' See Adams v. Negron, No. 03-1110, 94 Fed. Appx. 676, 2004 U.S. App. LEXIS 3558, at *4 (10th Cir. Feb. 25, 2004) (quoting Sandin, v. Conner, 515 U.S. 472, 484 (1995) (unpublished) (holding placement in highly structured, restrictive prison housing unit not deliberate indifference). Rather, "[a]dministrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration." Hewitt v. Helms, 459 U.S. 460, 468, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983). ORDER IT IS HEREBY ORDERED that: (1) Plaintiff must within thirty days cure the Complaint’s deficiencies noted above. (2) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a form habeas petition for Plaintiff to use should Plaintiff choose to file an amended petition. 5 (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’s motion to be excused from making copies of his filings to send to the Court with his originals is GRANTED. (Doc No. 6.) DATED this 4th day of February, 2019. BY THE COURT: JUDGE TED STEWART United States District Court 6
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