Gonzalez v. Nelson et al, No. 2:2018cv00319 - Document 4 (D. Utah 2019)
Court Description: MEMORANDUM DECISION & ORDER TO CURE DEFICIENT COMPLAINT: Plaintiff must within Thirty Days cure the Complaint's deficiencies noted above by filing a document entitled, "Amended Complaint," no more than twenty pages, tha t does not refer to or include any other document. 2) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a black-form civil rights complaint which plaintiff must use if he wishes to pursue an amended complaint. 3) If Plaintif f fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice. 4) Plaintiff shall not try to serve the amended complaint on Defendants; instead the Court will perform i ts screening function and determine itself whether the amended complaint warrants service. No motion for service of process is needed. The officers of the court shall issue and serve all process, and perform all duties. 5) Plaintiffs motion for appointment counsel is denied. Signed by Judge Tena Campbell on 05/28/2019. (kpf)
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Gonzalez v. Nelson et al Doc. 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH TEODORO GONZALEZ, Plaintiff, v. SGT. NELSON et al., MEMORANDUM DECISION & ORDER TO CURE DEFICIENT COMPLAINT Case No. 2:18-CV-319-TC Defendants. District Judge Tena Campbell Plaintiff, inmate Teodoro Gonzalez, 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 Complaint, (Doc. No. 2-1), under its statutory review function,2 the Court orders Plaintiff to file an 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 COMPLAINT’S DEFICIENCIES Complaint: (a) does not properly affirmatively link defendants to civil-rights violations. (b) appears to inappropriately allege civil-rights violations on respondeat-superior theory (e.g., deputy warden and Warden Scott Crowther). (c) names some possible defendants only in the text, not in Complaint’s heading (everyone but Sgt. Nelson). (d) does not, as it must, provide individual names for several of Defendants (e.g., “contract attorneys,” “OMR team,” “deputy warden,” and “grievance personnel”). (e) is not on the form complaint supplied by the Court, as required. (f) alleges conspiracy claims that are too vague. (See below.) (g) improperly asks the Court to terminate the employment of Defendant Nelson, which is not an available remedy in this case. (h) needs clarification regarding an unnecessary rigor cause of action under the Utah Constitution. (See below.) (i) has claims apparently regarding current confinement; however, complaint apparently not drafted with contract attorneys’ help. GUIDANCE FOR 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). 2 Pro se litigants are not excused from meeting 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 these general points before filing an amended complaint: (1) 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). The amended complaint may also not be added to after it is filed without moving for amendment.3 (2) 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 The rule on amending a pleading reads: (a) Amendments Before Trial. (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. (2) Other Amendments. In all other cases, a party may amend its pleadings only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires. Fed. R. Civ. P. 15. 3 3 have done what to whom.'" Stone v. Albert, 338 F. App’x 757, (10th Cir. 2009) (unpublished) (emphasis in original) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)). Plaintiff should also include, as much as possible, specific dates or at least estimates of when alleged constitutional violations occurred. (3) Each cause of action, together with the facts and citations that directly support it, should be stated separately. Plaintiff should be as brief as possible while still using enough words to fully explain the “who,” “what,” “where,” “when,” and “why” of each claim. (4) 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). (5) Grievance denial alone with no connection to “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). (6) “No action shall be brought with respect to prison conditions under . . . Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C.S. § 1997e(a) (2019). However, Plaintiff need not include grievance details in his complaint. Exhaustion of administrative remedies is an affirmative defense that must be raised by Defendants. Jones v. Bock, 549 U.S. 199, 216 (2007). • Conspiracy As to Plaintiff's conspiracy claim, 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 4 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. • Unnecessary Rigor Article I, § 9 of the Utah Constitution states in part, "[p]ersons arrested or imprisoned shall not be treated with unnecessary rigor." Although this clause "closely approximates the language of the Eighth Amendment," it has no federal counterpart. Dexter v. Bosko, 2008 UT 29, 184 P.3d 592, 595. The Utah Supreme Court has had "few opportunities to interpret or apply the unnecessary rigor." Id. Nonetheless, the Utah Supreme Court has held that the unnecessary rigor clause "'protects [prisoners and arrestees] against unnecessary abuse . . . that is 'needlessly harsh, degrading or dehumanizing.'" Id. at 595 (quoting Bott v. Deland, 922 P.2d 732, 737 (Utah 1996)). To state a claim for a violation of the unnecessary rigor clause, the violation "'must arise from 'treatment that is clearly excessive or deficient and unjustified, not merely the frustrations, inconveniences, and irritations that are common to prison life.'" Id. at 597 (quoting Bott, 922 P.2d at 741). When the claim of unnecessary rigor arises from an injury, a constitutional violation is made out only when the act complained of presented a substantial risk of serious injury for which there was no reasonable justification at the time. Id. (quoting Bott, 922 P.2d at 741). The conduct at issue, moreover, "must be more than negligent to be actionable." Id. In addition to these requirements, a plaintiff must also establish three elements to support an unnecessary rigor claim: (1) "A flagrant violation of his or her constitutional rights;" (2) "Existing remedies do not redress his or her injuries;" and, (3) "Equitable relief, such as an injunction, was and is wholly inadequate to protect the plaintiff's rights or redress his or her injuries." Id. at 597-98 (quoting Spackman v. Bd. of Educ., 2000 UT 87, 16 P.3d 533, 538-39 (Utah 2000)). . . . [However, Plaintiff’s] § 1983 claims likely serve as existing remedies that redress his injuries[, mooting the need to also bring an unnecessary rigor claim].” 5 Asay v. Daggett County, No. 2:18-CV-422, 2019 U.S. Dist. LEXIS 5794, at * (D. Utah Jan. 11, 2019). MOTION TO APPOINT COUNSEL The Court now addresses Plaintiff's motion, contained within the Complaint, (Doc. No. 2-1, at 12), 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. 6 ORDER IT IS HEREBY ORDERED that: (1) Plaintiff must within thirty days cure the Complaint’s deficiencies noted above by filing a document entitled, “Amended Complaint,” no more than twenty pages, that does not refer to or include any other document. (2) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a blank-form civilrights complaint which Plaintiff must use if he wishes to pursue an amended complaint. (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 shall not try to serve the amended complaint on Defendants; instead the Court will perform its screening function and determine itself whether the amended complaint warrants service. No motion for service of process is needed. See 28 U.S.C.S. § 1915(d) (2019) (“The officers of the court shall issue and serve all process, and perform all duties in [in forma pauperis] cases.”). (5) Plaintiff's motion for appointed counsel is DENIED, (see Doc. No. 2-1, at 12); 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 28th day of May, 2019. BY THE COURT: JUDGE TENA CAMPBELL United States District Court 7
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