Cardona v. Roberts, No. 2:2016cv00127 - Document 23 (D. Utah 2018)

Court Description: MEMORANDUM DECISION & Order Granting Motion to Dismiss Complaint and Requiring Plaintiff to File Amended Complaint. granting 17 Motion to Dismiss. It is hereby ordered that: Plaintiff must within thirty days cure the Complaint 9;s deficiencies noted. The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a form complaint and habeas petition for Plaintiff to use should Plaintiff choose to file an amended complaint. If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions this action will be dismissed without further notice. Signed by Judge Robert J. Shelby on 09/21/2018. (kpf)
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Cardona v. Roberts Doc. 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH RENE CARDONA, Plaintiff, v. SIDNEY ROBERTS, MEMORANDUM DECISION & ORDER GRANTING MOTION TO DISMISS COMPLAINT AND REQUIRING PLAINTIFF TO FILE AMENDED COMPLAINT Case No. 2:16-CV-127-RJS Defendant. District Judge Robert J. Shelby Plaintiff, Rene Cardona, a Utah State Prison inmate, filed this pro se civil rights suit, see 42 U.S.C.S. § 1983 (2018), in forma pauperis, see 28 id. § 1915. The Court now concludes that Defendant’s motion to dismiss the Complaint is well taken and thus dismisses the Complaint and orders Plaintiff to file an amended complaint to cure deficiencies before further pursuing claims. The Court provides the following guidance for the amended complaint. A. Deficiencies in Complaint Complaint: (a) does not affirmatively link Defendant to his claim of inadequate medical treatment but instead vaguely asserts that Defendant merely did not approve necessary treatment, perhaps provided by other personnel. (b) does not adequately state a claim of inadequate medical treatment (see below). B. 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 Dockets.Justia.com 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 Plaintiff’s 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)). 2 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). • Inadequate Medical Treatment The Eighth Amendment’s ban on cruel and unusual punishment requires prison officials to “provide humane conditions of confinement” including “adequate . . . medical care.” Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998)) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998)). To state a cognizable claim under the Eighth Amendment for failure to provide proper medical care, “a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (emphasis in original) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Any Eighth Amendment claim must be evaluated under objective and subjective prongs: (1) “Was the deprivation sufficiently serious?” And, if so, (2) “Did the officials act with a sufficiently culpable state of mind?” Wilson v. Seiter, 501 U.S. 294, 298 (1991). Under the objective prong, a medical need is “sufficiently serious . . .if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Sealock, 218 F.3d at 1209 (citations & quotation marks omitted). 3 The subjective component requires the plaintiff to show that prison officials were consciously aware that the prisoner faced a substantial risk of harm and wantonly disregarded the risk “by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). “[T]he ‘inadvertent failure to provide adequate medical care’ tantamount to negligence does not satisfy the deliberate indifference standard.” Sparks v. Singh, 690 F. App’x 598, 604 (10th Cir. 2017) (unpublished) (quoting Estelle v. Gamble, 429 U.S. 97, 105–06 (1976)). Furthermore, “a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.” Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 811 10th Cir. 1999); see also Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010) (“Disagreement with a doctor’s particular method of treatment, without more, does not rise to the level of an Eighth Amendment violation.”). ORDER IT IS HEREBY ORDERED that: (1) Defendant’s motion to dismiss the Complaint is GRANTED. (Doc. No. 17.) (2) Plaintiff must within thirty days cure the Complaint’s deficiencies noted above. (3) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a form complaint and habeas petition for Plaintiff to use should Plaintiff choose to file an amended complaint. 4 (4) If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions this action will be dismissed without further notice. DATED this 21st day of September, 2018. BY THE COURT: JUDGE ROBERT J. SHELBY United States District Court 5