Brown v. State of Utah, The, No. 2:2017cv00912 - Document 12 (D. Utah 2019)
Court Description: MEMORANDUM DECISION & ORDER DEFICIENT AMENDED COMPLAINT: Plaintiff must within thirty days cure the Amended Complaint's deficiencies noted by filing a document entitled, Second Amended Complaint. The Clerk's Office shall mai l Plaintiff a copy of the Pro Se Litigant Guide with a form complaint and habeas petition for Plaintiff to use should he choose to file another amended complaint or habeas corpus petition. Plaintiffs motion for appointed of counsel is DENIED. Denying 10 Motion for Service of Process (Prisoner); Denying 11 Motion for copies of complaint and all exhibits. See order for details. Signed by Judge Tena Campbell on 05/01/2019. (kpf)
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Brown v. State of Utah, The Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH FRANK JOSEPH BROWN, Plaintiff, v. STATE OF UTAH, MEMORANDUM DECISION & ORDER ON DEFICIENT AMENDED COMPLAINT Case No. 2:17-CV-912-TC Defendant. District Judge Tena Campbell Plaintiff, inmate Frank Joseph Brown, brings this pro se civil-rights action, see 42 U.S.C.S. § 1983 (2019),1 in forma pauperis, see 28 id. § 1915. Having now screened the Amended Complaint, (Doc. No. 7), under its statutory review function,2 the Court orders Plaintiff to file a second amended complaint to cure deficiencies before further pursuing claims. The federal statute creating a “civil action for deprivation of rights” reads, in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 42 U.S.C.S. § 1983 (2019). 2 The screening statute reads: (a) Screening.—The court shall review . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. (b) Grounds for dismissal.—On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint— (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.S. § 1915A (2019). 1 Dockets.Justia.com A. Deficiencies in Amended Complaint Amended Complaint: (a) appears to try to bring claims against other defendants who are referred to only in text and not named in the Amended Complaint’s heading and does not effectively affirmatively link the potential defendants to claims or causes of action. (b) suggests claims that have not been affirmatively linked to any alleged defendant. (c) brings civil-rights claims against Rudy Hernandez, who is not properly named, as he is a private citizen, not a state actor. (d) improperly names Michael Langford as a defendant, without considering that defense attorneys generally are not state actors subject to suit under § 1983. (e) appears to inappropriately allege civil-rights violations on a respondeat-superior theory. (f) does not state what relief is requested. (g) possibly asserts claims on the constitutional validity of his imprisonment, which should be brought in a habeas-corpus petition, not civil-rights complaint (e.g., ineffective assistance of counsel, withholding of exculpatory evidence, competence to plead guilty). (h) asserts claims possibly invalidated by the rule in Heck (see below). (i) is not on the form required by the Court. (j) names State of Utah as a defendant which violates governmental-immunity principles (see below). (k) alleges conspiracy claims that are too vague (see below). (l) improperly names prosecutor as defendant, apparently without considering prosecutorial immunity (see below). (m) names University of Utah Medical Center as a defendant, when it is not a proper defendant under § 1983. (n) evinces a misunderstanding of the cause of action for inadequate medical treatment. (o) is apparently supplemented with information and claims from documents (i.e., affidavit and memorandum in support of amended complaint), which claims should be included in a second 2 amended complaint, if filed, and will not be treated further by the Court unless properly included. (p) has claims apparently regarding current confinement; however, the complaint was apparently not drafted with the help of contract attorneys. 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 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 observing 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, the Court may not “assume the role of advocate for a pro se litigant." Id. Thus, the Court will not "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 part of the original complaint. See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (stating amended complaint supersedes original). 3 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 each named defendant’s personal participation 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 may not 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, a grievance denial alone with no “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). • Heck Plaintiff's claims appear to include some allegations that if true may invalidate his conviction or sentence. "In Heck, the Supreme Court explained that a § 1983 action that would impugn the validity of a plaintiff's [incarceration] cannot be maintained unless the [basis for incarceration] 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 keeps 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 4 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 his constitutional rights were breached in a way that may attack Petitioner's very imprisonment. Heck requires that, if a plaintiff requests § 1983 damages, this Court must decide whether judgment for the plaintiff would unavoidably imply that Plaintiff’s incarceration is invalid. Id. at 487. Here, it appears it may on 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 incarceration was 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. • State Immunity Next, there are claims that have been made against the State; however, 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, 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. 5 • Conspiracy As to Plaintiff's conspiracy claim (between Defendants Hernandez, Johnson and Langford), he "must specifically plead 'facts tending to show agreement and concerted action.'" Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (quoting Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983)). Plaintiff has not met this responsibility in his current complaint; his vague assertions that multiple people were involved in effecting breaches of his civil rights, and, therefore, a conspiracy must be involved, are not enough. He must assert more detail to pursue this claim further. • Prosecutorial Immunity for Defendant Johnson A prosecutor acting within the scope of his duties enjoys absolute immunity from suit under § 1983. Imbler v. Pachtman, 424 U.S. 409, 424 (1976). The prosecutor’s acts, as alleged by Plaintiff, appear to, in part, relate to advocacy before the court. This defendant therefore may be entitled to absolute prosecutorial immunity from this lawsuit. • Cruel-and-Unusual-Punishment Causes of Action 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)). 6 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 and quotation marks omitted). The subjective prong requires Plaintiff to show that prison officials were consciously aware that he 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). “‘[I]nadvertent 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, 429 U.S. at 105–06). Further, “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) (stating disagreeing with doctor’s particular treatment method, without more, does not rise to level of Eighth Amendment violation). Delay in receiving treatment is cognizable only if the delay was caused by deliberate indifference and resulted in substantial harm. Olson, 9 F.3d at 1477. “[I]n the context of a missed diagnosis or delayed referral, there must be direct or circumstantial evidence that ‘the need for additional treatment or referral to a medical specialist is obvious,’” and “’where a doctor merely 7 exercises his considered medical judgment,’” no deliberate indifference exists. Sparks, 690 F. App’x at 604 (quoting Self v. Crum, 439 F.3d 1227, 1231-32 (10th Cir. 2006)). MOTION TO APPOINT COUNSEL The Court now addresses Plaintiff's motion for the Court to ask 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). However, the Court may in its discretion appoint counsel for indigent plaintiffs. See 28 U.S.C.S. § 1915(e)(1) (2018); Carper, 54 F.3d at 617; Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991). Plaintiff bears the burden of convincing the Court that his claim has enough merit to warrant appointment of counsel. McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). In deciding whether to ask counsel to represent Plaintiff free of charge, this Court considers a variety of factors, like “'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 motion for appointed counsel. 8 ORDER IT IS HEREBY ORDERED that: (1) Plaintiff must within thirty days cure the Amended Complaint’s deficiencies noted above by filing a document entitled, “Second Amended Complaint,” that is no more than thirty pages long and does not refer to or include any other document. This is the second and FINAL order allowing Plaintiff to cure deficiencies in his complaint. If a second amended complaint is filed, the Court will screen it for dismissal or service. (2) The Clerk's Office shall mail Plaintiff a copy of the Pro Se Litigant Guide with a form complaint and habeas petition for Plaintiff to use should he choose to file another amended complaint or a habeas-corpus petition. (3) If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. (4) Plaintiff's motion for appointed counsel is DENIED, (see Doc. No. 7, at 66); 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. (5) Plaintiff’s motion for service of process is DENIED. (Doc. No. 10.) First, there is no valid complaint on file as of now. And, second, the Court will perform its screening function and determine itself whether the second amended complaint warrants service. No motion for service of process is needed. See 28 U.S.C.S. § 1915(d) (“The officers of the court shall issue and serve all process, and perform all duties in [in forma pauperis] cases.”). (6) Plaintiff’s motion for copies of complaint and all exhibits is DENIED. (Doc. No. 11.) These documents comprise over two hundred pages, all submitted by Plaintiff. Plaintiff does not state 9 satisfactory reasons to require the Court to go to the time and expense of providing so much material produced by him. Further, the Court’s order here provides much of the information needed for Plaintiff to understand how to proceed in drafting a second amended complaint. DATED this 1st day of May, 2019. BY THE COURT: JUDGE TENA CAMPBELL United States District Court 10
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