Melvin v. Clark et al, No. 2:2016cv00096 - Document 9 (D. Utah 2017)

Court Description: MEMORANDUM DECISION & ORDER: It is hereby ordered that: Plaintiff shall have THIRTY DAYS from the date of this order to cure the deficiencies noted. The Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide. If Plaintiff fails to timely cire the above deficiencies according to the instructions here this action may be dismissed without further notice. Signed by Judge Clark Waddoups on 06/01/2017. (Attachments: # 1 Certificate of Mailing)(kpf)
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Melvin v. Clark et al Doc. 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION MARCUS CHARLES MELVIN, MEMORANDUM DECISION AND ORDER Plaintiff, v. UTAH STATE PRISON MED DEP’T et al., Case No. 2:16-cv-96-CW Judge Clark Waddoups Defendants. Plaintiff, Marcus Charles Melvin, an inmate at Utah State Prison, filed this pro se civil rights suit. See 42 U.S.C. § 1983. Plaintiff was allowed to proceed in forma pauperis. See 28 U.S.C. § 1915. Reviewing the Complaint under § 1915(e), the Court has determined that Plaintiff’s Complaint is deficient as described below. Deficiencies in Complaint The Complaint: (a) does not make clear that Plaintiff is naming Utah State Prison Medical Director Washington as a defendant and not the Utah State Prison medical department itself, which is not an independent legal entity that can be sued; and (b) fails to provide an affirmative link between Defendant Washington and a civil-rights violation. Moreover, if Plaintiff is still incarcerated, Plaintiff should redraft the Complaint with the help of contract attorneys. Instructions to Plaintiff Under Rule 8 of the Federal Rules of Civil Procedure a complaint is required to contain “(1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, . . . (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a Dockets.Justia.com demand for judgment for the relief the pleader seeks.” Fed. R. Civ. P. 8(a). The requirements of Rule 8(a) are intended to guarantee “that defendants enjoy fair notice of what the claims against them are and the grounds upon which they rest.” TV Commnc’ns Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo. 1991), aff’d, 964 F.2d 1022 (10th Cir. 1992). Pro se litigants are not excused from compliance with the minimal pleading requirements of Rule 8. “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, 1009 (10th Cir. 1991). Moreover, “it is not the proper function of the Court to assume the role of advocate for a pro se litigant.” Id. at 1110. 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 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, 338 F. App’x 757, 759 (10th Cir. 2009) (unpublished) (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.3d 1433, 1441 (10th Cir. 1996) (stating 2 supervisory status alone is insufficient to support liability under § 1983). And, fourth, Plaintiff is warned that litigants who have had three in forma pauperis cases dismissed as frivolous or meritless will be restricted from filing future lawsuits without prepaying fees. 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 may be dismissed without further notice. DATED this 1st day of June, 2017. BY THE COURT: CLARK WADDOUPS United States District Judge 3