United States District Court, D. Utah
MICHAEL A. BACON, Plaintiff,
TODD R. WILCOX et al., Defendants.
MEMORANDUM DECISION & ORDER DISMISSING DEFENDANT
& ORDERING SERVICE ON REMAINING DEFENDANTS
TED STEWART, United States District Court
Michael A. Bacon, filed a pro se civil rights case,
see 42 U.S.C.S. § 1983 (2017), proceeding
in forma pauperis, see 28 id.
1915. The Court now screens his Amended Complaint, under the
standard that any claims in a complaint filed in forma
pauperis must be dismissed if they are frivolous,
malicious or fail to state a claim upon which relief may be
granted. See Id. §§ 1915-1915A.
names as defendants Salt Lake County Jail affiliates Todd
Wilcox, Brad Lewis, Eric Lindley, Patrick Gee, Deputy
Backman, and Lt. Denerio. He alleges that Defendant Backman
wrongfully endangered him, resulting in an injury for which
he was given 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 Atlantic
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 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 Denerio to his
claims, but has instead identified him merely as someone who
denied grievance(s)--and has not tied any material facts to
him. Plaintiff's claims against this defendant therefore
may not survive this screening. And Defendant Denerio is thus
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 Amended Complaint,
(see Docket Entry # 31), along with this Order, upon
the following Salt Lake ...