Rohwedder v. State of Utah, No. 2:2013cv00710 - Document 28 (D. Utah 2015)
Court Description: MEMORANDUM DECISION and REPEATED ORDER TO AMEND DEFICIENT AMENDED COMPLAINT; It is hereby ordered that: As a final opportunity, Plaintiff must within thirty days cure the deficiencies noted above. If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. Denying 24 Motion for Service of Process (Prisoner) Denying 25 Motion to Appoint Counsel; Denying 26 Motion to Appoint Counsel. Signed by Judge Dee Benson on 10/8/2015. (kpf)
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Rohwedder v. State of Utah Doc. 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH BILLY L. ROHWEDDER, Plaintiff, MEMORANDUM DECISION AND REPEATED ORDER TO AMEND DEFICIENT AMENDED COMPLAINT v. STATE OF UTAH, Case No. 2:13-CV-710-DB Defendant. District Judge Dee Benson Plaintiff, inmate Billy L. Rohwedder, filed this civil rights suit, see 42 U.S.C.S. § 1983 (2015). The Court now screens the Amended Complaint, see 28 id. § 1915A, and orders Plaintiff to file a second amended complaint to cure deficiencies before further pursuing his claims. Deficiencies in Amended Complaint Amended Complaint: (a) improperly names "State of Utah" as a defendant, though there is no showing that it has waived its governmental immunity (see below). (b) alleges claims that are possibly invalidated by the rule in Heck (see below). (c) is not on a Court-approved form. (d) has claims appearing to be based on conditions of 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)). Dockets.Justia.com Instructions to Plaintiff 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 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, "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). Fifth, as to claims that have been made against the State, generally, the Eleventh Amendment prevents "suits against a state unless it has waived its immunity or consented to suit, or if Congress has validly abrogated the state's immunity." Ray v. McGill, No. CIV-06-0334-HE, 2 2006 U.S. Dist. LEXIS 51632, at *8 (W.D. Okla. July 26, 2006) (unpublished) (citing Lujan v. Regents of Univ. of Cal., 60 F.3d 1511, 1522 (10th Cir. 1995); Eastwood v. Dep't of Corrs., 846 F.2d 627, 631 (10th Cir. 1988)). Plaintiff asserts no basis for determining that the State has waived its immunity or that it has been abrogated by Congress. Because any claims against the State appear to be precluded by Eleventh Amendment immunity, the Court believes it has no subject-matter jurisdiction to consider them. See id. at *9. Finally, the Court concludes that Plaintiff's claims appear to involve some allegations that if true may invalidate his conviction and/or sentencing. "In Heck, the Supreme Court explained that a § 1983 action that would impugn the validity of a plaintiff's underlying conviction cannot be maintained unless the conviction has been reversed on direct appeal or impaired by collateral proceedings." Nichols v. Baer, No. 08-4158, 2009 U.S. App. LEXIS 4302, at *4 (10th Cir. Mar. 5, 2009) (unpublished) (citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). Heck prevents litigants "from using a § 1983 action, with its more lenient pleading rules, to challenge their conviction or sentence without complying with the more stringent exhaustion requirements for habeas actions." Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007) (citation omitted). Heck clarifies that "civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." 512 U.S. at 486. Plaintiff argues that Defendants violated his constitutional rights in a way that may attack Petitioner's very imprisonment. Heck requires that, when a plaintiff requests damages in a § 1983 suit, this Court must decide whether judgment in the plaintiff's favor would unavoidably imply that the conviction or sentence is invalid. Id. at 487. Here, it appears it may regarding some claims. If this Court were to conclude that Plaintiff's constitutional rights were violated in 3 a prejudicial manner, it would be stating that Plaintiff's conviction and/or sentence were not valid. Thus, the involved claims "must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Id. This has apparently not happened and may result in dismissal of such claims. ORDER IT IS HEREBY ORDERED that: (1) As a final opportunity, Plaintiff must within thirty days cure the deficiencies noted above. (2) If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. (3) Plaintiff’s motion for service of process is DENIED. (See Docket Entry # 24.) There is no valid complaint on file to serve. Moreover, the Court will screen and order service of process on prisoner complaints without prompting. So, no motions of this kind are ever needed. (4) For the reasons stated in the Court’s prior order denying appointed counsel, Plaintiff’s motions for appointed counsel are DENIED. (See Docket Entry #s 25 & 26.) DATED this 8th day of October, 2015. BY THE COURT: JUDGE DEE BENSON United States District Court 4
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