United States District Court, D. Utah
MEMORANDUM DECISION & ORDER
N. PARRISH, JUDGE UNITED STATES DISTRICT COURT.
Judge Jill N. Parrish Plaintiff, Brian Oblad, moves the Court
to allow him to amend his Complaint. The Court grants the
motion, with the following guidance for Plaintiff to follow
in amending the Complaint.
Rule 8 of the Federal Rules of Civil Procedure a complaint is
required to contain "(1) a short and plain statement of
the grounds upon which the court's jurisdiction depends,
. . . (2) a short and plain statement of the claim showing
that the pleader is entitled to relief, and (3) a demand for
judgment for the relief the pleader seeks." Fed.R.Civ.P.
8(a). The requirements of Rule 8(a) are intended to guarantee
"that defendants enjoy fair notice of what the claims
against them are and the grounds upon which they rest."
TV Commnc'ns Network, Inc. v. ESPN, Inc., 767
F.Supp. 1062, 1069 (D. Colo. 1991), aff'd, 964
F.2d 1022 (10th Cir. 1992).
litigants are not excused from compliance with the minimal
pleading requirements of Rule 8. "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."
Hall v. Bellmon, 935 F.2d 1106, 1009 (10th Cir.
1991). Moreover, "it is not the proper function of the
Court to assume the role of advocate for a pro se
litigant." Id. at 1110. Thus, the Court cannot
"supply additional facts, [or] construct a legal theory
for plaintiff that assumes facts that have not been
pleaded." Dunn v. White, 880 F.2d 1188, 1197
(10th Cir. 1989).
should consider the following points before refiling his
complaint. First, the revised complaint must stand entirely
on its own and shall not refer to, or incorporate by
reference, any portion of the original complaint or other
documents already filed in this case. See Murray v.
Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (stating
amended complaint supersedes original). Second, 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, 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)). Third,
Plaintiff cannot name an individual as a defendant based
solely on his or her 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). And, fourth, Plaintiff is
warned that litigants who have had three in forma
pauperis cases dismissed as frivolous or meritless will
be restricted from filing future lawsuits without prepaying
Plaintiff has flooded the Court with correspondence and
motions that potentially raise other claims and name other
defendants. Any claim or defendant from that correspondence
that Plaintiff intends to pursue in this case must be
formally set forth in his amended complaint. The Court will
not further consider any of the claims or defendants outside
of the amended complaint.
FOR APPOINTED COUNSEL
has no constitutional right to counsel. See Carper v.
Deland, 54 F.3d 613, 616 (10th Cir. 1995); Bee v.
Utah State Prison, 823 F.2d 397, 399 (10th Cir. 1987).
However, the Court may in its discretion appoint counsel for
indigent inmates. See 28 U.S.C.S. § 1915(e)(1)
(2017); Carper, 54 F.3d at 617; Williams v.
Meese, 926 F.2d 994, 996 (10th Cir. 1991). "The
burden is upon the applicant to convince the court that there
is sufficient merit to his claim to warrant the appointment
of counsel.” McCarthy v. Weinberg, 753 F.2d
836, 838 (10th Cir. 1985).
deciding whether to appoint counsel, the district court
should consider a variety of factors, "including
'the merits of the litigant's claims, the nature of
the factual issues raised in the claims, the litigant's
ability to present his claims, and the complexity of the
legal issues raised by the claims.'" Rucks v.
Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting
Williams, 926 F.2d at 996); accord
McCarthy, 753 F.2d at 838-39. Considering the above
factors, the Court concludes here that, at this time,
Plaintiff's claims may not be colorable, the issues in
this case are not complex, and Plaintiff is not at this time
too incapacitated or unable to adequately function in
pursuing this matter. Thus, the Court denies for now
Plaintiff's motions for appointed counsel.
IS HEREBY ORDERED that:
(1) Plaintiffs motion for permission to amend his Complaint
is GRANTED. (See Docket Entry #
43.) Plaintiff shall file his amended complaint within thirty
(2) The Clerk's Office shall mail Plaintiff a copy of the
Pro Se Litigant Guide with a blank ...