United States District Court, D. Utah
MEMORANDUM DECISION & ORDER DISMISSING DEFENDANTS
& CLAIMS & ORDERING SERVICE ON REMAINING
Waddoups District Judge.
Aaron David Trent Needham, filed a pro se civil
rights case, see 42 U.S.C.S. § 1983 (2018),
proceeding in forma pauperis, see 28
id. 1915. The Court now screens his Fourth Amended
Complaint, under the standard that any claims in a complaint
filed in forma pauperis must be dismissed if they
are frivolous, malicious or fail to state a claim upon which
relief may be granted. See Id. §§
Grounds for Sua Sponte Dismissal
evaluating the propriety of dismissing claims for failure to
state a claim upon which relief may be granted, this Court
takes all well-pleaded factual assertions as true and regards
them in a light most advantageous to the plaintiff. Ridge
at Red Hawk L.L.C. v. Schneider, 493 F.3d 1174, 1177
(10th Cir. 2007). Dismissal is appropriate when, viewing
those facts as true, the plaintiff has not posed a
"plausible" right to relief. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Robbins
v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008).
"The burden is on the plaintiff to frame a
'complaint with enough factual matter (taken as true) to
suggest' that he or she is entitled to relief."
Robbins, 519 F.3d at 1247 (quoting Twombly,
550 U.S. at 556). When a civil-rights complaint contains
"bare assertions, " involving "nothing more
than a 'formulaic recitation of the elements' of a
constitutional . . . claim, " the Court considers those
assertions "conclusory and not entitled to" an
assumption of truth. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1951 (2009) (quoting Twombly, 550 U.S. at
554-55). In other words, "the mere metaphysical
possibility that some plaintiff could prove
some set of facts in support of the pleaded claims
is insufficient; the complaint must give the court reason to
believe this plaintiff has a reasonable likelihood
of mustering factual support for these claims."
Red Hawk, 493 F.3d at 1177 (italics in original).
Court must construe pro se "'pleadings liberally,
' applying a less stringent standard than is applicable
to pleadings filed by lawyers. Th[e] court, however, will not
supply additional factual allegations to round out a
plaintiff's complaint or construct a legal theory on a
plaintiff's behalf." Whitney v. New Mexico,
113 F.3d 1170, 1173-74 (10th Cir. 1997) (citations omitted).
In the Tenth Circuit, this means that if this Court can
reasonably read the pleadings "to state a valid claim on
which the plaintiff could prevail, it should do so despite
the plaintiff's failure to cite proper legal authority,
his confusion of various legal theories, his poor syntax and
sentence construction, or his unfamiliarity with pleading
requirements." Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). Still, it is not "the proper
function of the district court to assume the role of advocate
for the pro se litigant." Id.; see also
Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998)
(citing Dunn v. White, 880 F.2d 1188, 1197 (10th
Cir. 1989) (per curiam)).
Inadequate Description of Defendant
cursorily asserts that “Scott, ” a “medical
supplier . . . orders material but neglects to order the
right material [resulting in] maintain[ing] the infection for
three and half years.” In the nearly three years since
he filed his initial complaint, Plaintiff has not been able
to give more details about this defendant and claim. Over
that time, the Court has entertained an amended complaint, a
second amended complaint, a third amended complaint and now
this fourth amended complaint. Moreover, the Court twice gave
individually tailored advice to Plaintiff about how to assert
valid claims. (See Docket Nos. 29 & 32.)
Finally, the Court recently allowed Plaintiff yet another
chance to clarify his fourth amended complaint. (Docket No.
common first name, “Scott, ” along with the lack
of other identifying information, is not enough to allow
Plaintiff to move forward with any claims.
“Scott” is therefore dismissed.
establish a § 1983 cause of action, 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).
These named defendants are not state actors and are therefore
dismissed: Clement Tebbs, state witness (SW); John Tebbs, SW;
Jolie Bown, SW; Brydie Platt, SW; John Grealish, SW; Greg
Adamson, SW; BACT Limited Partnership; Bonneville Builders;
BB Management I; Wells Fargo (WF); Jamie Starks, WF; 20/20
Properties; Chad Ferguson, home buyer; Kelly Hertz, home
buyer; Christine Carter, investor; Allan Carter, investor;
Deseret News; and St. George Spectrum.
Fourth Amended Complaint names other 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 unconstitutional state action does not himself act
under color of state law within the meaning of §
1983.'" Id. (quoting Briscoe v.
LaHue, 460 U.S. 325, 329 n. 6 (1983)).
Aric Cramer, public defender (PD); Candice Reed, PD; Doug
Terry, PD; Ben Gordon, PD; Gary Kuhlman, PD; Nicolas Turner,
PD; were thus not state actors, as they must be for Plaintiff
to assert a federal civil-rights claim against them. Thus,
Plaintiff's claims against them may not proceed here.
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 defendant is
essential allegation). "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)). Plaintiff may not name an individual as a defendant
based solely on supervisory status. See Mitchell v.
Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating
supervisory status alone is insufficient to support liability
under § 1983). Nor does "denial of a grievance, by
itself without any connection to the violation of
constitutional rights alleged by plaintiff . . . establish
personal participation under § 1983." Gallagher
v. Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787, at
*11 (10th Cir. Nov. 24, 2009).
these guidelines, the Court concludes that Plaintiff has done
nothing to affirmatively link Defendants Mark Shurtleff,
retired Utah Attorney General (UAG); Gordon Summers, DOPL;
Scherie Wilcox, paralegal UAG; Jacob Taylor Assistant UAG;
Terri Powell, investigator UAG; Brock Karrington, state
investigator; Dr. Gardner, USP; Officer Skinner, USP; Officer
Gordon, USP; Elizabeth Lewis, USP case manager; Lieutenant
Mason, USP; Sergeant Olan, USP; Officer Herrest, USP; Captain
Holiday, USP; Dr. Norwicki, USP; Director Rollin Cook, USP;
or Kurt Swayer, City of Mesquite; to his claims, but has
instead identified them merely as bystanders or supervisors
or deniers of grievances--and has not tied any material facts
to them. Plaintiff's claims against these defendants
therefore may not survive screening. And these defendants are
Claims Not Linked to Names or Named Defendants
“[F]orced to sleep on the floor with limited support
for approximately 29 days receiving no access to the showers
during the time - were [sic] [he] contracted some infection
for sleeping on the floor at the Purgatory Jail.”
Isolated in the USP infirmary for nine months where Plaintiff
“was allowed out of the cell for bandage change, an
occasional shower for about an hour a ...