Leyva v. Higley, No. 4:2021cv00024 - Document 33 (D. Utah 2023)
Court Description: MEMORANDUM DECISION & Order: Plaintiff must within thirty days cure the complaints deficiencies noted above by filing a document entitled, Second Amended Complaint, that does not refer to or include any other document. The second ame nded complaint shall not include any claims (a) occurring past the date of the "events giving rise to [Plaintiff's] claims," listed as "March 14, 2017, March 17, 2017, Summer of 2017," and (b) outside the allegations of trans actions and events contained in the Complaint, (ECF Nos. 3, 15). The Court will not address any such new claims or outside allegations, which will be dismissed. If Plaintiff wishes to raise other claims and allegations, Plaintiff may do so only in a new complaint in a new case.Plaintiff shall not try to serve the second amended complaint on Defendants; instead, the Court will perform its screening function and determine itself whether the second amended complaint warrants service or dismissal. D ocument numbers 20, 23, and 25 through 30 are all STRUCK from the docket. Plaintiff failed to abide by the terms of 28 U.S.C.S. § 1915 (2023), governing proceedings in forma pauperis, like this action. (ECF Nos. 1-2.) In these actions, "[t] he officers of the court shall issue and serve all process, and perform all duties in such cases." 28 U.S.C.S. § 1915(d) (2023) (emphasis added). Plaintiff was thus not authorized to request summonses and serve the defendants named in the now-superseded Amended Complaint. (ECF Nos. 16, 20, 23, 25, 26.) Signed by Judge David Nuffer on 09/26/2023. (Attachments: # 1 ProSe Litigant Guide, # 2 Blank - Civil Rights Complaint)(kpf)
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Leyva v. Higley Doc. 33 Case 4:21-cv-00024-DN Document 33 Filed 09/27/23 PageID.263 Page 1 of 7 THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH YOLANDA LETICIA LEYVA, Plaintiff, v. MEMORANDUM DECISION & ORDER TO CURE DEFICIENT AMENDED COMPLAINT Case No. 4:21-CV-24-DN MATT HIGLEY, Defendant. District Judge David Nuffer In this pro se prisoner civil-rights action, see 42 U.S.C.S. § 1983 (2023), having screened Plaintiff’s Amended Complaint, (ECF No. 16), under its statutory review function, see 28 U.S.C.S. § 1915A (2023), the Court orders Plaintiff to file a second amended complaint to cure deficiencies before further pursuing claims. AMENDED COMPLAINT’S DEFICIENCIES Amended Complaint: (a) "includes claims outside or beyond what was already contained in the complaint[] originally filed here," despite the Court's admonition that such claims "MAY NOT" be included. (ECF Nos. 3; 15, at 7.) (b) does not properly affirmatively link defendants to specific civil-rights violations. (See below.) (c) appears to assert claims past the statute of limitations for civil-rights cases. (See below.) 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 Dockets.Justia.com Case 4:21-cv-00024-DN Document 33 Filed 09/27/23 PageID.264 Page 2 of 7 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 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 a second amended complaint: (i) 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. 1 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. 1 2 Case 4:21-cv-00024-DN Document 33 Filed 09/27/23 PageID.265 Page 3 of 7 (ii) 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, 759 (10th Cir. 2009) (unpublished) (emphasis in original) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)). (iii) 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. Robbins, 519 F.3d at 1248 ("The [Bell Atlantic Corp. v.] Twombly Court was particularly critical of complaints that 'mentioned no specific, time, place, or person involved in the alleged [claim].' [550 U.S. 544, 565] n.10 (2007). Given such a complaint, 'a defendant seeking to respond to plaintiff's conclusory allegations . . . would have little idea where to begin.' Id."). (iv) Plaintiff may not name an individual as a defendant based solely on supervisory position. See Mitchell v. Maynard, 80 F.2d 1433, 1441 (10th Cir. 1996) (stating supervisory status alone does not support § 1983 liability). (v) Grievance denial alone with no connection to “violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983." Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009). (vi) “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 3 Case 4:21-cv-00024-DN Document 33 Filed 09/27/23 PageID.266 Page 4 of 7 remedies as are available are exhausted.” 42 U.S.C.S. § 1997e(a) (2023). 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). • Affirmative Link [A] plaintiff who brings a constitutional claim under § 1983 can't obtain relief without first satisfying the personal-participation requirement. That is, the plaintiff must demonstrate the defendant "personally participated in the alleged constitutional violation" at issue. Vasquez v. Davis, 882 F.3d 1270, 1275 (10th Cir. 2018). Indeed, because § 1983 is a "vehicle[] for imposing personal liability on government officials, we have stressed the need for careful attention to particulars, especially in lawsuits involving multiple defendants." Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013); see also Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (explaining that when plaintiff brings § 1983 claims against multiple defendants, "it is particularly important . . . that the complaint make clear exactly who is alleged to have done what to whom"); Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532-33 (10th Cir. 1998)) (holding that district court's analysis of plaintiff's § 1983 claims was "infirm" where district court "lump[ed]" together plaintiff's claims against multiple defendants--"despite the fact that each of the defendants had different powers and duties and took different actions with respect to [plaintiff]"--and "wholly failed to identify specific actions taken by particular defendants that could form the basis of [a constitutional] claim"). Estate of Roemer v. Johnson, 764 F. App’x 784, 790-91 (10th Cir. 2019). “A plaintiff’s failure to satisfy this requirement will trigger swift and certain dismissal.” Id. at 790 n.5. Indeed, the Tenth Circuit has “gone so far as to suggest that failure to satisfy the personal-participation requirement will not only justify dismissal for failure to state a claim; it will render the plaintiff’s claim frivolous.” Id. 4 Case 4:21-cv-00024-DN Document 33 Filed 09/27/23 PageID.267 Page 5 of 7 • Statute of Limitations "Utah's four-year residual statute of limitations . . . governs suits brought under section 1983.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). Plaintiff's claims accrued when "'facts that would support a cause of action are or should be apparent.'” Id. at 675 (citation omitted. From the Amended Complaint’s face, some circumstances occurred more than four years before the Amended Complaint was filed. ORDER IT IS HEREBY ORDERED that: (1) Plaintiff must within thirty days cure the complaint’s deficiencies noted above by filing a document entitled, “Second Amended Complaint,” 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 civil-rights complaint, which Plaintiff must use if wishing to pursue potential claims further. (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) The second amended complaint shall not include any claims (a) occurring past the date of the "events giving rise to [Plaintiff's] claims," listed as "March 14, 2017, March 17, 2017, Summer of 2017," and (b) outside the allegations of transactions and events contained in the Complaint, (ECF Nos. 3, 15). The Court will not address any such new claims or outside allegations, which will be dismissed. If Plaintiff wishes to raise other claims and allegations, Plaintiff may do so only in a new complaint in a new case. 5 Case 4:21-cv-00024-DN Document 33 Filed 09/27/23 PageID.268 Page 6 of 7 (5) Plaintiff shall not try to serve the second amended complaint on Defendants; instead, the Court will perform its screening function and determine itself whether the second amended complaint warrants service or dismissal. No motion for service of process is needed. See 28 U.S.C.S. § 1915(d) (2023) (“The officers of the court shall issue and serve all process, and perform all duties in [in forma pauperis] cases.”). All defendants and claims should be included in an amended complaint, if filed, and will not be treated further by the Court unless properly included. (6) Plaintiff must tell the Court of any address change and timely comply with Court orders. See D. Utah Civ. R. 83-1.3(e) ("In all cases, counsel and parties appearing pro se must notify the clerk's office immediately of any change in address, email address, or telephone number."). Failure to do so may result in this action’s dismissal for failure to prosecute. See Fed. R. Civ. P. 41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule-except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19-operates as an adjudication on the merits.”). (7) Time extensions are disfavored, though reasonable extensions may be granted. Any motion for time extension must be filed no later than fourteen days before the deadline to be extended. (8) No direct communication is to take place with any judge. All relevant information, letters, documents, and papers, labeled with case number, are to be directed to the Clerk of Court. 6 Case 4:21-cv-00024-DN Document 33 Filed 09/27/23 PageID.269 Page 7 of 7 (9) Document numbers 20, 23, and 25 through 30 are all STRUCK from the docket. Plaintiff failed to abide by the terms of 28 U.S.C.S. § 1915 (2023), governing proceedings in forma pauperis, like this action. (ECF Nos. 1-2.) In these actions, "[t]he officers of the court shall issue and serve all process, and perform all duties in such cases." 28 U.S.C.S. § 1915(d) (2023) (emphasis added). Plaintiff was thus not authorized to request summonses and serve the defendants named in the now-superseded Amended Complaint. (ECF Nos. 16, 20, 23, 25, 26.) Signed September 26, 2023. BY THE COURT ________________________________________ David Nuffer United States District Judge 7
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