United States District Court, D. Utah
MEMORANDUM DECISION & ORDER DISMISSING DEFENDANTS
& ORDERING SERVICE ON REMAINING DEFENDANTS
Campbell, District Judge
Earl Leston Barnes 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 Utah Department of Corrections (UDOC)
employees Billie Casper, Steven Turley, Chad Duford, Alan
Howard, Shayne Norton, Lt. Roger Peterson, and Sidney
Roberts. He primarily alleges claims of inadequate medical
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, 556 U.S.
662, 678-79 (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 Defendants Billie Casper and
Steven Turley to his claims, but has instead identified them
merely as personnel who denied grievances. Plaintiff's
claims against these defendants therefore may not survive
screening. And Defendants Casper and Turley are 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 # 18), along with this Order, upon
the following UDOC defendants:
CHAD DUFORD ALAN HOWARD SHAYNE NORTON LT. ROGER
PETERSON SIDNEY ROBERTS
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 administrative remedies
in a grievance process, Defendants must,
(i) within 20 days of service, file an answer;
(ii) within 90 days of filing an answer, prepare and file
a Martinez report limited to the exhaustion
(iii) within 120 days of filing an answer, file a separate
summary judgment motion, with a supporting memorandum.
(B) If Defendants choose to challenge the bare
allegations of the Complaint, Defendants shall, within 20
days of service,
(i) file an answer; or
(ii) file a motion to dismiss based on Federal Rule of
Civil Procedure 12(b)(6).
(C) If Defendants choose not to rely on the defense of
failure to exhaust and wish to pierce the allegations of
the Complaint, Defendants must,
(i) within 20 days of service, file an answer;
(ii) within 90 days of filing an answer, prepare and file a
Martinez report addressing the substance of the
(iii) within 120 days of filing an answer, ...