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Neilson v. Herbert

United States District Court, D. Utah

August 11, 2017

LUCAS TROY NEILSON, Plaintiff,
v.
GARY HERBERT, Defendants.

          MEMORANDUM DECISION & DISMISSAL ORDER

          Clark Waddoups United States District Court Judge

         District 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.

         SCREENING ANALYSIS

         A. Standard of Review

         This 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. 1991).

         Because 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.

         B. Plaintiff's Allegations

         Plaintiff's 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).

         C. Supervisory Liability

         The 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).

         Based 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 defendant.

         State-Actor Requirement

         To 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).

         The 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 ...


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