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Neilson v. Reyes

United States District Court, D. Utah, Central Division

September 5, 2017

LUCAS T. NEILSON, Plaintiff,
v.
SEAN D. REYES, SIM GILL, BYRON BURMESTER, and BRADFORD COOLEY, Defendants.

          DEE BENSON DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          PAUL M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE

         District Judge Dee Benson referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).[1] Before the court are two motions to dismiss filed by Defendants;[2] Plaintiff's motion to amend his complaint;[3] Plaintiff's motion for default judgment;[4] Plaintiff's motion for an extension of time to respond to one of the Defendants' motions to dismiss;[5] and Plaintiff's motion for service of process.[6] The court has carefully reviewed the written memoranda submitted by the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District Court for the District of Utah, the court has concluded that oral argument is not necessary and will determine the motions on the basis of the written memoranda. See DUCivR 7-1(f).

         The court recongizes that Plaintiff has been permitted to proceed in forma pauperis under 28 U.S.C. § 1915 (“IFP statute”).[7] The court also recognizes that Plaintiff is proceeding pro se in this case. Consequently, the court will construe his pleadings liberally. See, e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003).

         BACKGROUND

         The following background is taken from Plaintiff's complaint, as well as from state court case dockets.[8] Utah state prosecutors have brought a five-count information, including three felony counts, against Plaintiff in Utah District Court. Plaintiff has an acronym tattooed on his right arm, which prosecutors have considered a gang tattoo and which led to his placement on a gang membership list by the Organized Gang Prosecution Team of the Salt Lake District Attorney's Office. Plaintiff alleges that his placement on this list was entirely due to the tattoo, and that this classification disqualified him from certain court programs.

         Plaintiff brings claims pursuant to 42 U.S.C. § 1983, alleging that Defendants (the Deputy Salt Lake District Attorneys who prosecuted him, the Salt Lake District Attorney who allegedly supervised the prosecutors, and the Utah Attorney General) have violated his First and Fourteenth Amendment rights. Plaintiff further alleges that he was denied access to certain court organized-services because of his placement on the gang membership list. Based upon those allegations, Plaintiff seeks damages against Defendants.

         LEGAL STANDARDS

         Notwithstanding the fact that Defendants have moved to dismiss Plaintiff's complaint, the court has determined that it will conduct its own review of the sufficiency of Plaintiff's complaint under the authority of the IFP statute. The following standards govern that review.

         Whenever the court authorizes a party to proceed without payment of fees under the IFP statute, the court is required to “dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). In determining whether a complaint fails to state a claim for relief under the IFP statute, the court employs the same standard used for analyzing motions to dismiss for failure to state a claim under rule 12(b)(6) of the Federal Rules of Civil Procedure. See Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007). Under that standard, the court “look[s] for plausibility in th[e] complaint.” Id. at 1218 (quotations and citations omitted) (second alteration in original). More specifically, the court “look[s] to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief. Rather than adjudging whether a claim is ‘improbable, ' ‘[f]actual allegations [in a complaint] must be enough to raise a right to relief above the speculative level.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)) (other quotations and citation omitted) (second and third alterations in original).

         In undertaking that analysis, the court must be mindful that Plaintiff is proceeding pro se and that “[a] pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall, 935 F.2d at 1110; see also, e.g., Ledbetter, 318 F.3d at 1187. At the same time, however, it is not “the proper function of the district court to assume the role of advocate for the pro se litigant, ” Bellmon, 935 F.2d at 1110, and the court “will not supply additional facts, nor will [it] construct a legal theory for [a pro se] plaintiff that assumes facts that have not been pleaded.” Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam). Further,

[t]he broad reading of [a pro se] plaintiff's complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based. . . . [C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based. This is so because a pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted. Moreover, in analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations.

Bellmon, 935 F.2d at 1110 (citations omitted).

         ANALYSIS

         I. Review of Plaintiff's Complaint Under the IFP Statute

         A. ...


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