Rohwedder v. Unified Police Department et al, No. 2:2013cv00750 - Document 17 (D. Utah 2015)
Court Description: MEMORANDUM DECISION and ORDER; It is hereby ordered: Plaintiff shall have THIRTY DAYS from the date of this order to cure the deficiencies noted. The Clerks Office shall mail a copy of the Pro Se Litigant Guide. If Plaintiffs fails to timely cure the above deficiencies according to the instructions here this action will be dismissed without further notice. denying 16 Motion for Service of Process (Prisoner). First. The Second Amended Complaint has been deemed deficient, and therefore, not worthy of service. See order for details. Signed by Judge Clark Waddoups on 4/7/2015. (kpf)
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Rohwedder v. Unified Police Department et al Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH BILLY L. ROHWEDDER, Plaintiff, ORDER & MEMORANDUM DECISION v. MIKELLE DAUGHERTY et al., Defendants. Case No. 2:13-CV-750-CW District Judge Clark Waddoups Plaintiff, inmate Billy L. Rohwedder, filed this pro se civil rights suit, see 42 U.S.C.S. § 1983 (2014), in forma pauperis, see 28 id. § 1915. The Court now screens the Second Amended Complaint and orders Plaintiff to file a third amended complaint to cure deficiencies before further pursuing his claims. Deficiencies in Second Amended Complaint Second Amended Complaint: (a) alleges claims that are possibly invalidated by the rule in Heck (see below). (b) is not on a Court-approved form. (c) improperly names prosecutor, Mikelle Daugherty, as a defendant, without considering prosecutorial immunity. (d) improperly names public defenders, Charity Shreve and John Plimpton, as defendants, without considering that public defenders are not “state actors” who can be sued in a civil-rights action. (e) improperly names Judge Hruby Mills as a defendant, without considering judicial immunity. Dockets.Justia.com 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." 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 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). 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 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) Plaintiff shall have THIRTY DAYS from the date of this order to 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 the instructions here this action will be dismissed without further notice. And, (4) Plaintiff’s motion for service of process is DENIED. (See Docket Entry # 16.) First, the Second Amended Complaint has been deemed deficient, and, therefore, not worthy of service. And, second, the Court is already required by statute to screen prisoner complaints, see 28 U.S.C.S. § 1915A (2014), and order service of process if warranted, see id. § 1915(d). No further prompting by Plaintiff is necessary. DATED this 7th day of April, 2015. BY THE COURT: CLARK WADDOUPS United States District Judge
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