Cox v. Salt Lake County Jail et al, No. 2:2011cv00312 - Document 12 (D. Utah 2012)

Court Description: MEMORANDUM DECISION denying 2 Motion to Appoint Counsel; denying 3 Motion for Service of Process; denying 6 Motion for Service of Process (Prisoner); denying 7 Motion for Plaintiffs to be moved to a facility that provides access to a law library; denying 11 Motion requesting relief from retaliation. The Clerks Office shall mail Plaintiff a copy of the Pro Se Litigant Guide. Signed by Judge Clark Waddoups on 2/10/2012. (kpf)
Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH _________________________________________________________________ TERRY COX, ) ORDER TO AMEND DEFICIENT ) COMPLAINT & MEMORANDUM Plaintiff, ) DECISION ) v. ) Case No. 2:11-CV-312 CW ) SALT LAKE COUNTY JAIL et al., ) District Judge Clark Waddoups ) Defendants. ) _________________________________________________________________ Plaintiff, inmate Terry Cox, filed this pro se civil rights suit, see 42 U.S.C.S. § 1983 (2012), in forma pauperis, see 28 id. § 1915. The Court now screens the complaint and orders Plaintiff to file an amended complaint to cure continuing deficiencies before further pursuing his claims. Deficiencies in Complaint Complaint: (a) improperly names Salt Lake County Jail as a defendant, though it is not an independent legal entity that can sue or be sued. (b) does not state a proper legal-access claim. Instructions to 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 whether he makes out a claim on which relief can be granted." (10th Cir. 1991). Hall v. Bellmon, 935 F.2d 1106, 1110 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 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 defendant did to violate Plaintiff's civil rights. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (stating personal 2 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). Further, "denial of a grievance, by itself without any connection to the 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). The Court also notes that one of Plaintiff's claims involves legal access. As Plaintiff fashions his amended complaint, he should therefore keep in mind that it is well-recognized 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 3 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 access to the courts, a plaintiff must allege not only the inadequacy of the library or legal assistance furnished but also "that the denial of legal resources hindered [the 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, a plaintiff must show "that any denial or delay of access to the court prejudiced him in pursuing litigation." Galetka, 74 F.3d 191, 194 (10th Cir. 1996). Treff v. 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). MOTIONS FOR APPOINTED COUNSEL AND SERVICE OF PROCESS The Court first considers the motion for appointed counsel. Plaintiff has no constitutional right to counsel. 4 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) (2012); Carper, 54 F.3d at 617; 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 (1) it is not clear at this point that Plaintiff has asserted a colorable claim; (2) the issues in this case are not complex; and (3) Plaintiff is not incapacitated or unable to adequately function in pursuing this matter. Thus, the Court denies for now Plaintiff's motion for appointed counsel. Next, the Court denies for now Plaintiff's motions for service of process. The Court has yet to make a final 5 determination whether to dismiss Plaintiff's complaint or order it to be served upon Defendants. See 28 U.S.C.S. § 1915A (2012). Plaintiff need do nothing further to trigger this process. ORDER Based on the foregoing, IT IS HEREBY ORDERED: (1) Plaintiff must within thirty days cure the deficiencies noted above. (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 this Order's instructions, this action will be dismissed without further notice. (4) Plaintiff's request for appointed counsel is DENIED, (see Docket Entry # 2); however, if it later appears that counsel may be needed or of specific help, the Court may ask an attorney to appear pro bono on Plaintiff's behalf. No further motions of this nature are necessary. (6) Plaintiff's motions for service of process are DENIED, (see Docket Entry #s 3 & 6); however, if, upon further review, it appears that this case has merit and states a claim upon which relief may be granted, the Court may order service of process. (7) Plaintiff's motions to be moved and for relief from retaliation by jail employees are DENIED. 6 (See Docket Entry #s 7 & 11.) Having not heard from Plaintiff since May 16, 2011, when it sounded like Plaintiff was in transitional housing, the Court is unsure of Plaintiff's current location. Plaintiff is welcome to renew these motions if the issues still exist. DATED this 10th day of February, 2012. BY THE COURT: _____________________________ JUDGE CLARK WADDOUPS United States District Court 7