Carrell v. Kearl et al, No. 2:2018cv00654 - Document 32 (D. Utah 2018)

Court Description: MEMORANDUM DECISION & ORDER: Upon the Court's screening of the Complaint under 29 USC § 1915A(2018), Defendant Benson is dismissed with prejudice, for failure to state a claim upon which relief may be granted. denying 6 M otion to Accept and Recognize Legal Power of Attorney for Plaintiff's signature; denying 24 Motion to Stay Case. The filing fee has been paid and Complaint screened. Defendants shall answer within twenty days; denying 27 Motion for Entry of Default Judgment. Signed by Judge Tena Campbell on 10/25/2018. (kpf)
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Carrell v. Kearl et al Doc. 32 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH JOHN CARRELL, Plaintiff, MEMORANDUM DECISION & ORDER v. JORDAN KEARL et al., Case No. 2:18-CV-654-TC Defendants. District Judge Tena Campbell Plaintiff, John Carrell, a Utah State Prison inmate, filed a pro se prisoner civil-rights complaint, see 42 U.S.C.S. § 1983 (2018), proceeding in forma pauperis. See 28 id. § 1915. His Complaint is now before the Court for screening. See id. § 1915A. SCREENING ANALYSIS 1. Grounds for Sua Sponte Dismissal In evaluating the propriety of dismissing a complaint 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 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 Atl. 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 that 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 these 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 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)). Dismissing the complaint "without affording the plaintiff notice or an opportunity to amend is proper only 'when it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.'" Curley v. 2 Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (quoting Hall, 935 F.2d at 1110 (additional quotation marks omitted)). 2. Affirmative Link 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 defendant is essential allegation). "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 individual as a defendant based solely on supervisory status. See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating supervisory status alone is insufficient to support liability under § 1983). Nor does "denial of a grievance, by itself without any connection to the violation of constitutional rights alleged by plaintiff . . . establish personal participation under § 1983." Gallagher v. Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787, at *11 (10th Cir. Nov. 24, 2009). Considering these guidelines, the Court concludes that Plaintiff has done nothing to affirmatively link Defendant Benzon to his claims, but has instead identified him merely as a bystander, supervisor, or denier of grievances--and has not tied any material facts to him. Plaintiff's claims against this defendant therefore may not survive screening. And this defendant is dismissed. 3 ORDER IT IS ORDERED that: (1) Upon the Court’s screening of the Complaint under 29 U.S.C.S. § 1915A (2018), Defendant Benzon is DISMISSED with prejudice, for failure to state a claim upon which relief may be granted. (2) Plaintiff’s Motion to Accept and Recognize Legal Power of Attorney for Plaintiff’s Signature is DENIED. (Doc. No. 6.) Plaintiff asserts a need for this based on “situations like this where obtaining my personal signiture [sic] adds a minimum of 10 business days to the process.” The Court assures Plaintiff that it will not hold against Plaintiff any ten-business-day delay in responses required by the Court. (3) Defendants’ Motion to Stay Case is DENIED. (Doc. No. 24.) The filing fee has been paid and Complaint screened. Defendants shall answer within twenty days. (4) Plaintiff’s motion for entry of default judgment is DENIED. (Doc. No. 27.) DATED this 25th day of October, 2018. BY THE COURT: TENA CAMPBELL United States District Judge 4