Lakhumna v. Messenger et al, No. 4:2018cv00081 - Document 31 (D. Utah 2019)
Court Description: MEMORANDUM DECISION AND ORDER TO CURE DEFICIENTFOURTH AMENDED COMPLAINT -denying as moot 25 Motion for Preliminary Injunction. Plaintiff must within thirty days cure the Complaints deficiencies noted above by filing adocument entitled, Fifth Amended Complaint." See Order for details. Signed by Judge David Nuffer on 12/27/19. (jmr)
Download PDF
<![CDATA[
Lakhumna v. Messenger et al Doc. 31 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH VIVEK LAKHUMNA, Plaintiff, v. SGT. MESSENGER at al., Defendants. MEMORANDUM DECISION & ORDER TO CURE DEFICIENT FOURTH AMENDED COMPLAINT Case No. 4:18-CV-81-DN District Judge David Nuffer Plaintiff, Vivek Lakhumna, 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 Fourth Amended Complaint, (Doc. No. 23), under its statutory review function,2 the Court orders Plaintiff to file a fifth amended complaint to cure deficiencies before further pursuing claims. 1 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). Dockets.Justia.com FOURTH AMENDED COMPLAINT’S DEFICIENCIES Fourth Amended Complaint: (a) does not properly affirmatively link Defendants to civil-rights violations (e.g., Sgt. Messenger). (b) is not on the form complaint required by the Court. (c) does not appear to state a proper legal-access claim. (See below.) (d) is perhaps supplemented with claims from complaints filed before the Fourth Amended Complaint, which claims should be included in the fifth amended complaint, if filed, and will not be treated further by the Court unless properly included. 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). 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). 2 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(s). 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 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. 3 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 (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 the complaint. Exhaustion of administrative remedies is an affirmative defense that must be raised by Defendants. Jones v. Bock, 549 U.S. 199, 216 (2007). • Legal Access The Court notes that Plaintiff's claim(s) may involve legal access. As Plaintiff fashions the amended complaint, Plaintiff should keep in mind that it is well-recognized that prison inmates "have a constitutional right to 'adequate, effective, and meaningful' access to the courts and that the states have 'affirmative obligations' to assure all inmates such access." Ramos v. Lamm, 639 F.2d 559, 583 (10th Cir. 1980). In Bounds v. Smith, 430 U.S. 817 (1977), the Supreme Court expounded on the obligation to provide legal access by stating "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id. at 828 (footnote omitted & emphasis added). 4 However, to successfully assert a constitutional claim for denial of access to courts, a plaintiff must allege not only inadequacy of the library or legal assistance provided but also "that the denial of legal resources hindered [the plaintiff's] efforts to pursue a nonfrivolous claim." Penrod v. Zavaras, 84 F.3d 1399, 1403 (10th Cir. 1996) (emphasis added); Carper v. Deland, 54 F.3d 613, 616 (10th Cir. 1995). In other words, a plaintiff must show that “denial or delay of access to the court prejudiced h[er] in pursuing litigation." Treff v. Galetka, 74 F.3d 191, 194 (10th Cir. 1996). Moreover, the non-frivolous litigation involved must be "habeas corpus or civil rights actions regarding current confinement." Carper, 54 F.3d at 616; accord Lewis v. Casey, 518 U.S. 343, 353-55 (1996). ORDER IT IS HEREBY ORDERED that: (1) Plaintiff must within thirty days cure the Complaint’s deficiencies noted above by filing a document entitled, “Fifth Amended Complaint.” All defendants and claims should be included in a fifth amended complaint, if filed, and will not be treated further by the Court unless properly included. This is the second and FINAL order allowing Plaintiff to cure deficiencies. If a fifth amended complaint is filed, the Court will screen it for dismissal or service of process. (2) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a blank-form civilrights complaint which Plaintiff must use if Plaintiff 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 Fifth Amended Complaint on Defendants; instead the Court will perform its screening function and determine itself whether the amended complaint warrants 5 service. No further 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 preliminary injunctive relief is DENIED as moot. (See Doc. No. 25.) The motion requested that a county jail serve him a proper religious diet. Plaintiff has since moved to another institution. DATED this 27th day of December, 2019. BY THE COURT: JUDGE DAVID NUFFER United States District Court 6
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
