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Needham v. State

United States District Court, D. Utah

March 12, 2018

AARON DAVID TRENT NEEDHAM, Plaintiff,
v.
STATE OF UTAH et al., Defendants.

          MEMORANDUM DECISION & ORDER DISMISSING DEFENDANTS & CLAIMS & ORDERING SERVICE ON REMAINING DEFENDANTS

          Clark Waddoups District Judge.

         Plaintiff/inmate, 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. §§ 1915-1915A.

         DISMISSAL ORDER

         1. Grounds for Sua Sponte Dismissal

         In 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).

         This 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)).

         2. Inadequate Description of Defendant

         Plaintiff 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. 42.)

         The 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.

         3. State-Actor Requirement

         To 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.

         The 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)).

         Defendants 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.

         4. Affirmative Link

         a. Defendants

         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 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).

         Considering 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 dismissed.

         b. Claims Not Linked to Names or Named Defendants

         i. “[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.”

         ii. 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 ...


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