Rohwedder v. Unified Police Department et al, No. 2:2013cv00750 - Document 26 (D. Utah 2015)
Court Description: MEMORANDUM DECISION & ORDER DISMISSING DEFENDANT & ORDERING SERVICE OF REMAINING DEFENDANT: It is hereby ordered that: Defendant Winder is DISMISSED. Denying 21 Motion to Appoint Counsel; Granting 22 Motion for Service of Proces s (Prisoner). The United States Marshals Service shall serve a summons, a copy of Plaintiffs complaint, and a copy of this Order upon Defendant Detective Christie Brown; denying 24 Motion to Appoint Counsel. Signed by Judge Clark Waddoups on 10/14/2015. (kpf)
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Rohwedder v. Unified Police Department et al Doc. 26 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH MEMORANDUM DECISION & ORDER DISMISSING DEFENDANT & ORDERING SERVICE ON REMAINING DEFENDANT BILLY L. ROHWEDDER, Plaintiff, v. DETECTIVE CHRISTIE BROWN et al., Case No. 2:13-CV-750-CW Defendants. District Judge Clark Waddoups Plaintiff/inmate, Billy L. Rohwedder, filed a pro se civil rights case, see 42 U.S.C.S. § 1983 (2015), proceeding in forma pauperis, see 28 id. 1915. The Court now screens his Third Amended Complaint, under the standard that any claims in a complaint filed in forma pauperis must be dismissed if they are frivolous, malicious or fail to state a claim upon which relief may be granted. See id. §§ 1915-1915A. DISMISSAL ORDER 1. Claims Plaintiff names as defendants Unified Police Department Detective Christie Brown and Salt Lake County Sheriff Jim Winder. He alleges that Defendants illegally held him as a pretrial detainee and confiscated his property. 2. Grounds for Sua Sponte Dismissal In evaluating the propriety of dismissing claims for failure to state a claim upon which relief may be granted, this Court takes all well-pleaded factual assertions as true and regards them in a light most advantageous to the plaintiff. Ridge at Red Hawk L.L.C. v. Schneider, 493 Dockets.Justia.com F.3d 1174, 1177 (10th Cir. 2007). Dismissal is appropriate when, viewing those facts as true, the plaintiff has not posed a "plausible" right to relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). "The burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556). When a civil rights complaint contains "bare assertions," involving "nothing more than a 'formulaic recitation of the elements' of a constitutional . . . claim," the Court considers those assertions "conclusory and not entitled to" an assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009) (quoting Twombly, 550 U.S. at 554-55). In other words, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe this plaintiff has a reasonable likelihood of mustering factual support for these claims." Red Hawk, 493 F.3d at 1177 (italics in original). This Court must construe pro se "'pleadings liberally,' applying a less stringent standard than is applicable to pleadings filed by lawyers. Th[e] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citations omitted). In the Tenth Circuit, this means that if this Court can reasonably read the pleadings "to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Still, it is not "the proper function of the district court to assume the role 2 of advocate for the pro se litigant." Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam)). 3. Respondeat Superior The complaint must clearly state what each individual defendant 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)). Plaintiff may not name an entity or individual as a defendant based solely on supervisory position. See Mitchell v. Maynard, 80 F.3d 1433, 1441, (10th Cir. 1996) (stating supervisory status alone is insufficient to support liability under § 1983). Because Plaintiff has done nothing to affirmatively link Defendant Winder to his claims, but has instead identified him merely as a supervisor, Plaintiff's claims against this defendant may not survive this screening. This defendant is thus dismissed. ORDER FOR SERVICE OF PROCESS ON REMAINING DEFENDANT The Court concludes that official service of process is warranted on the remaining defendant. The United States Marshals Service (USMS) is directed to serve a properly issued summons and a copy of Plaintiff's Third Amended Complaint, (see Docket Entry # 18), along with this Order, upon the following Unified Police Department defendant: Detective Christie Brown. 3 Once served, Defendant shall respond to the summons in one of the following ways: (A) If Defendant wishes to assert the affirmative defense of Plaintiff's failure to exhaust administrative remedies in a grievance process, Defendant must, (i) within 20 days of service, file an answer; (ii) within 90 days of filing an answer, prepare and file a Martinez report limited to the exhaustion issue1; and, (iii) within 120 days of filing an answer, file a separate summary judgment motion, with a supporting memorandum. (B) If Defendant chooses to challenge the bare allegations of the Complaint, Defendant shall, within 20 days of service, (i) file an answer; or (ii) file a motion to dismiss based on Federal Rule of Civil Procedure 12(b)(6). (C) If Defendant chooses not to rely on the defense of failure to exhaust and wish to pierce the allegations of the Complaint, Defendant must, 1 See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) (approving district court's practice of ordering prison administration to prepare report to be included in pleadings in cases when prisoner has filed suit alleging constitutional violation against institution officials). In Gee v. Estes, 829 F.2d 1005 (10th Cir. 1987), the Tenth Circuit explained the nature and function of a Martinez report, saying: Under the Martinez procedure, the district judge or a United States magistrate [judge] to whom the matter has been referred will direct prison officials to respond in writing to the various allegations, supporting their response by affidavits and copies of internal disciplinary rules and reports. The purpose of the Martinez report is to ascertain whether there is a factual as well as a legal basis for the prisoner’s claims. This, of course, will allow the court to dig beneath the conclusional allegations. These reports have proved useful to determine whether the case is so devoid of merit as to warrant dismissal without trial. Id. at 1007. 4 (i) within 20 days of service, file an answer; (ii) within 90 days of filing an answer, prepare and file a Martinez report addressing the substance of the complaint; and, (iii) within 120 days of filing an answer, file a separate summary judgment motion, with a supporting memorandum. (D) If Defendant wishes to seek relief otherwise contemplated under the procedural rules (e.g., requesting an evidentiary hearing), Defendant must file an appropriate motion within 90 days of filing her answer. The parties shall take note that local rules governing civil cases are in effect. All requirements are important but the most significant changes are in motion practice and sealed filings. This Court will order the parties to refile summary-judgment motions which do not follow the standards. See D. Utah Civ. R. 5-2 (Filing Cases and Documents under Court Seal); id. 7-1 (Motions and Memoranda); id. 26-2 (Standard Protective Order and Stays of Depositions); id. 56-1 (Summary Judgment: Motions and Supporting Memoranda). Plaintiff is notified that if Defendant moves for summary judgment Plaintiff may not rest upon the mere allegations in the complaint. Instead, as required by Federal Rule of Civil Procedure 56(e), to survive a motion for summary judgment Plaintiff must allege specific facts, admissible in evidence, showing that there is a genuine issue remaining for trial. MOTION TO APPOINT COUNSEL The Court now addresses Plaintiff's motions for the Court to request pro bono counsel to represent him. Plaintiff has no constitutional right to counsel. 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). 5 However, the Court may in its discretion appoint counsel for indigent plaintiffs. See 28 U.S.C.S. § 1915(e)(1) (2015); 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, at this time, Plaintiff's claims may not be colorable, the issues in this case are not complex, and Plaintiff is not at this time too incapacitated or unable to adequately function in pursuing this matter. Thus, the Court denies for now Plaintiff's motions for appointed counsel. ORDER Accordingly, IT IS HEREBY ORDERED that: (1) Defendant Winder is DISMISSED. (2) Plaintiff’s motion to serve the Third Amended Complaint is GRANTED. (See Docket Entry # 22.) (3) The USMS shall serve a completed summons, a copy of the Third Amended Complaint, (see Docket Entry # 18), and a copy of this Order upon the above-listed remaining defendant, Detective Christie Brown. 6 (4) Within twenty days of service, Defendant must file an answer or motion to dismiss, as outlined above. (5) If filing (on exhaustion or any other basis) a Martinez report, Defendant must do so within 90 days of filing her answer(s). Under this option, Defendant must then file a summaryjudgment motion within 120 days of filing her answer. (6) If served with a Martinez report, Plaintiff may file a response within 30 days of the report’s filing date. (7) If served with a summary-judgment motion or motion to dismiss, Plaintiff must submit a response within 30 days of the motion’s filing date. (8) Summary-judgment motion deadline is 120 days from filing of answer. (9) If requesting relief otherwise contemplated under the procedural rules, Defendant must do so within 90 days of filing her answer. (10) Plaintiff's motions for appointed counsel are DENIED, (see Docket Entry #s 21 & 24); however, if, after the case develops further, it appears that counsel may be needed or of specific help, the Court will ask an attorney to appear pro bono on Plaintiff's behalf. DATED this 14th day of October, 2015. BY THE COURT: CLARK WADDOUPS United States District Judge 7
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