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MacArthur v. Tubbs

United States District Court, D. Utah

May 29, 2018

KENNON TUBBS et al., Defendants.



         On September 20, 2017, this Court dismissed Plaintiff's action for failure to prosecute; Plaintiff had not cured his deficient complaint as ordered by the Court on July 11, 2017. Attaching an amended complaint to cure his prior deficiencies, Plaintiff now moves to reopen the case and for leave to file an amended complaint. Good cause appearing, the Court grants Plaintiff's motion.

         The Court now screens the 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. 28 U.S.C.S. §§ 1915-1915A (2018).


         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 Defendants John Does II-V

         Plaintiff cursorily describes John Does II-V as individuals he complained to about his illness symptoms. He does not provide physical descriptions or titles or any other information that might allow the Court or Utah Department of Corrections to identify them by name. In the more than three years since he filed his initial complaint, Plaintiff has not been able to give more details about these defendants. Over that time, the Court gave individually tailored advice to Plaintiff about how to assert valid claims. (See Docket No. 12.) Moreover, the Court has visited Plaintiff's motions to reopen the case, each time with a chance to correct the deficiencies in his descriptions of John Does II-V. (Docket Nos. 24 & 25.)

         The lack of specific identifying information for John Does II-V is not enough to allow Plaintiff to move forward with any claims against them. John Does II-V are therefore dismissed.

         3. Lack of Affirmative Link to Defendants Sydney Roberts & Billie Casper

         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 Sydney Roberts and Billie Casper 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.


         The Court concludes that official service of process is warranted on the remaining defendants. The United States Marshals Service (USMS) is directed to serve a properly issued summons and a copy of Plaintiff's Amended Complaint, (Doc. No. # 25-1), along with this Order, upon the remaining State of Utah defendants:

Kennon Tubbs
Logan Clark
Raymond Merrill
Aaron Douglas
Jeremy Wendler
Wayne Freestone
David Angerhofer
Officer Hughes
Lieutenant Green
Sergeant Gurney
Sergeant Drake
Officer Laursen
Lieutenant DeMill
John Doe I (emergency medical technician working pill line on September 2, 2011)
Once served, Defendants shall respond to the summons in one of the following ways:
(A) If Defendants wish to assert the affirmative defense of Plaintiff's failure to exhaust administrative remedies in a grievance process, Defendants must,
(i) within 20 days of service, file an answer;
(ii) within 90 days of filing an answer, prepare and file a Martinez report limited to the exhaustion issue[1]; and,
(iii) within 120 days of filing an answer, file a separate summary judgment motion, with a ...

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