United States District Court, D. Utah
MEMORANDUM DECISION & ORDER DISMISSING DEFENDANTS
& ORDERING SERVICE ON REMAINING DEFENDANT.
JILL N. PARRISH United States District Court.
Michael Jensen, filed a pro se civil rights case,
see 42 U.S.C. § 1983, proceeding in forma
pauperis, see 28 U.S.C. § 1915. The Court
now screens his Complaint, under the standard that any
portion of a complaint in forma pauperis must be
dismissed if it is frivolous, malicious, or fail to state a
claim upon which relief may be granted. See Id.
names as defendants Utah Department of Corrections (UDOC)
affiliates Dr. Richard Garden, Chad Duford and Scott
Crowther. He alleges claims of inadequate medical treatment.
Grounds for Sua Sponte Dismissal
evaluating the propriety of dismissing claims 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, 127 S.Ct. 1955
(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. See Ashcroft v.
Iqbal, 556 U.S. 662, 681, 129 S.Ct. 1937 (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 this plaintiff has
a reasonable likelihood of mustering factual support for
these claims." Red Hawk, 493 F.3d at
1177 (italics in original).
Court must construe 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)).
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 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, 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 entity or individual as a defendant
based solely on supervisory position. 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).
these guidelines, the Court concludes that Plaintiff has done
nothing to affirmatively link Defendant Scott Crowther to his
claims, but has instead identified him merely as a supervisor
and has not alleged any material facts that would tie him to
the alleged deprivations at issue here. Plaintiff's
claims against this defendant therefore may not survive this
screening. And Defendant Scott Crowther is thus dismissed.
FOR SERVICE OF PROCESS ON REMAINING DEFENDANTS
Court concludes that official service of process is warranted
on the remaining defendants. The United States Marshals
Service (USMS) is directed to serve a properly issued summons
and a copy of Plaintiff's Second Amended Complaint,
(see Docket No. 50), along with this Order, upon the
following UDOC-related defendants: Dr. Richard Garden and
Chad Duford, P.A.
served, Defendants shall respond to the summons in one of the
following ways: (A) If Defendants wish to assert the
affirmative defense of Plaintiff's failure to exhaust