United States District Court, D. Utah
MEMORANDUM DECISION & DISMISSAL ORDER
Waddoups United States District Court Judge
Judge Clark Waddoups Plaintiff, Lucas Troy Neilson, an inmate
at Salt Lake County Jail, filed this pro se civil
rights suit, see 42 U.S.C.S. § 1983 (2017),
proceeding in forma pauperis. See 28
id. § 1915. His Complaint is now before the
Court for screening. See Id. § 1915(e).
Defendants have also moved for dismissal for failure to state
a claim upon which relief may be granted.
Standard of Review
Court shall dismiss any claims in a complaint filed in
forma pauperis if they are frivolous, malicious, fail to
state a claim upon which relief may be granted, or seek
monetary relief against an immune defendant. See Id.
§ 1915(e)(2)(B). "Dismissal of a pro se complaint
for failure to state a claim is proper only where it is
obvious that the plaintiff cannot prevail on the facts he has
alleged and it would be futile to give him an opportunity to
amend." Perkins v. Kan. Dep't of Corrs.,
165 F.3d 803, 806 (10th Cir. 1999). When reviewing the
sufficiency of a complaint the Court "presumes all of
plaintiff's factual allegations are true and construes
them in the light most favorable to the plaintiff."
Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.
Plaintiff is proceeding pro se the Court must
construe his pleadings "liberally" and hold them
"to a less stringent standard than formal pleadings
drafted by lawyers." Id. at 1110. However,
"[t]he broad reading of the plaintiff's complaint
does not relieve [him] of the burden of alleging sufficient
facts on which a recognized legal claim could be based."
Id. While Plaintiff need not describe every fact in
specific detail, "conclusory allegations without
supporting factual averments are insufficient to state a
claim on which relief can be based." Id.
Complaint alleges violations of his right to effective
assistance of counsel by Utah Governor Gary Herbert and Salt
Lake Legal Defender Association employees (LDA defendants),
Patrick Anderson (executive director), Andrea Garland
(defense counsel), and Amy Fowler (defense counsel).
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, 2009 U.S. App. LEXIS 15944, at *4 (10th Cir. July
20, 2009) (unpublished) (emphasis in original) (quoting
Robbins, 519 F.3d at 1250). 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). Further, "denial of a grievance, by itself
without any connection to the 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).
on this standard, Plaintiff has done nothing to affirmatively
link Defendant Herbert to a violation of his constitutional
rights, but has instead identified him merely as a supervisor
of sorts. Plaintiff's claim against him may not survive
this screening then. Defendant Herbert is thus dismissed as a
establish a cause of action under § 1983, Plaintiff must
allege (1) the deprivation of a federal right by (2) a person
acting under color of state law (without immunity). Gomez
v. Toledo, 446 U.S. 635, 640 (1980); Watson v. City
of Kansas City, 857 F.2d 690, 694 (10th Cir. 1988).
Complaint names LDA defendants based on their role as
Plaintiff's government-appointed defense counsel. The
following rule therefore applies: "[T]he Supreme Court
has stated that 'a public defender does not act under
color of state law when performing a lawyer's traditional
functions as counsel to a defendant in a criminal
proceeding.'" Garza v. Bandy, No. 08-3152,
2008 U.S. App. LEXIS 17440, at *4 (10th Cir. Aug. 13, 2008)
(unpublished) (quoting Polk County v. Dodson, 454
U.S. 312, 325 (1981)). Additionally, "'even though
the defective performance of defense counsel may cause the
trial process to deprive an accused person of his liberty in
an unconstitutional manner, the lawyer who may be responsible
for the ...