United States District Court, D. Utah, Central Division
LUCAS T. NEILSON, Plaintiff,
SEAN D. REYES, SIM GILL, BYRON BURMESTER, and BRADFORD COOLEY, Defendants.
BENSON DISTRICT JUDGE
REPORT AND RECOMMENDATION
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE
Judge Dee Benson referred this case to Chief Magistrate Judge
Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(B). Before the court are two motions to
dismiss filed by Defendants; Plaintiff's motion to amend
his complaint; Plaintiff's motion for default
judgment; Plaintiff's motion for an extension of
time to respond to one of the Defendants' motions to
dismiss; and Plaintiff's motion for service of
process. 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).
court recongizes that Plaintiff has been permitted to proceed
in forma pauperis under 28 U.S.C. § 1915 (“IFP
statute”). 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).
following background is taken from Plaintiff's complaint,
as well as from state court case dockets. 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.
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.
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.
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).
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).
Review of Plaintiff's Complaint Under the IFP