United States District Court, D. Utah, Central Division
Stewart, District Judge
REPORT AND RECOMMENDATION
B. Pead, United States Magistrate Judge
September 4, 2018, the court granted Petitioner's motion
to proceed in forma pauperis. (ECF No. 2.) On the same day,
Plaintiff filed both a complaint and an amended complaint,
which only added a jury demand. (ECF Nos. 3, 7.) This matter
was referred to Magistrate Judge Pead under 28 U.S.C. §
636(b)(1)(B). (ECF No. 9.) Currently pending before the court
are Plaintiff's motions to appoint counsel, effect
service of process, toll the statute of limitations, amend
the amended complaint to attach an exhibit, and allow
participation in the courts' electronic noticing
registration. (ECF Nos. 4-6, 10-11.) The court addresses all
of the pending motions in this Report and Recommendation with
the exception of Plaintiff's motion for electronic
noticing registration, which will be addressed in a separate
Screening Plaintiff's Amended Complaint under 28 U.S.C.
must dismiss a complaint filed by a plaintiff proceeding in
forma pauperis if the complaint fails to state a claim on
which relief may be granted. 28 U.S.C. § 1915(e)(2);
Buchheit v. Green, 705 F.3d 1157, 1160-61 (10th Cir.
2012). When deciding whether to dismiss, a court accepts the
allegations in the complaint “as true and construe[s]
those allegations, and any reasonable inferences that might
be drawn from them” in a plaintiff's favor.
Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir.
2002). “Nevertheless, conclusory allegations without
supporting factual averments are insufficient to state a
claim on which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). While a
pro se complaint must be construed liberally, a court should
avoid acting as an advocate for a pro se litigant.
in order to state a proper claim Fed.R.Civ.P. 8 requires that
a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2); see also DUCivR 3-5 (the
complaint “should state the basis for the court's
jurisdiction, the basis for the plaintiff's claim or
cause for action, and the demand for relief”). The
requirements of Rule 8(a) are further reinforced under rule
8(d)(1), which provides that “[e]ach allegation must be
simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1).
explained by the Tenth Circuit, compliance with Fed.R.Civ.P.
8 requires that a pleading “explain what each defendant
did to him or her; when the defendant did it; how the
defendant's action harmed him or her; and, what specific
legal right the plaintiff believes the defendant
violated.” Nasious v. Two Unknown B.I.C.E.
Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). These
requirements are designed to provide the opposing party with
fair notice of the claims against it and allow the court to
conclude that, if proven, the allegations show that plaintiff
is entitled to relief. See Monument Builders of Greater
Kansas City, Inc. v. American Cemetery Assn. of Kansas,
891 F.2d 1473, 1480 (10th Cir. 1989) citing Perington
Wholesale Inc. v. Burger King Corp., 631 F.2d 1369, 1371
(10th Cir. 1979); see also Nasious at 1163 (10th
Cir. 2007) (a plain statement under rule 8 provides a
Defendant with “sufficient notice to begin preparing
its defense and the court sufficient clarity to adjudicate
has filed a thirty-two (32) page amended complaint alleging
Kristie Bourdon, Adult Probation and Parole, Dave Franchino,
the Utah Board of Pardons and Parole, John Does 1-4, unknown
employees with the Department of Corrections, Sean Reyes, as
Attorney General for the State of Utah, and Curtis Garner,
the Utah Board of Pardons and Parole, violated numerous
Constitutional rights and various federal codes. Out of the
32-pages, Plaintiff writes at length in a confused way about
how he was unlawfully required to register as a sex offender
on Utah's Sex Offender Registry.
however, fails to provide information about his convictions
in the body of his amended complaint. This failure prevents
Plaintiff from showing whether, given the nature of his
convictions, Defendants unlawfully imposed further sex
registration requirements on him, thereby entitling him to
legal relief. See Assoc. Gen. Contractors of Cal. v. Cal.
State Council of Carpenters, 459 U.S. 519, 526 (1983).
Additionally, while over the span of approximately sixteen
(16) pages Plaintiff describes his run in with Defendants
about the sex offender registration issue, he fails to
include, with any form of clarity, the approximate month and
year in which these encounters occurred. Without these
details, the court is unable to properly evaluate any statute
of limitation issues that may be present in this case.
Plaintiff filed his amended complaint on September 4, 2018,
and failed to include the exhibits that were attached to the
originally complaint. Yet, on September 10, 2018, Plaintiff
filed a motion for leave to amend the amended complaint
asking to attach exhibit 4. “An amended complaint
supersedes the original complaint, rendering it of no legal
effect and waiving all causes of action alleged in the
original complaint but not alleged or incorporated into the
amended complaint.” See Mondragon v. Camping,
2013 WL 5609348, fn 1 (D. Colo. 2013) (citing Kelley v.
Crosfield Catalysts, 135 F.3d 1202, 1204-05 (7th Cir.
1998) (holding in deciding to dismiss an amended complaint, a
court could not rely on factual allegations made in original
complaint but not repeated or incorporated into amended
one.”)). If Plaintiff's exhibits are to be
incorporated into a second amended complaint, then he will
need to attach them thereto. Otherwise, the court is unable
to rely on those exhibits in support of any factual
to remedy the aforementioned inadequacies, this court
RECOMMENDS the District Judge
ORDER Plaintiff to file a second amended
complaint as addressed below.
Plaintiff's motion ...