United States District Court, D. Utah
MEMORANDUM DECISION & ORDER GRANTING MOTION TO
REOPEN CASE, ALLOWING AMENDED COMPLAINT, DISMISSING CERTAIN
DEFENDANTS & ORDERING SERVICE ON REMAINING
BENSON UNITED STATES DISTRICT JUDGE.
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.
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).
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 Defendants John Does II-V
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.)
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.
Lack of Affirmative Link to Defendants Sydney Roberts &
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 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.
FOR SERVICE OF PROCESS ON REMAINING DEFENDANTS
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:
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
(iii) within 120 days of filing an answer, file a separate
summary judgment motion, with a ...