United States District Court, D. Utah
DIANE R. PRIGGE, Plaintiff,
CLARK BOULTON et al., Defendants.
SECOND ORDER TO CURE DEFICIENT AMENDED COMPLAINT
& MEMORANDUM DECISION
DAVID NUFFER UNITED STATES DISTRICT COURT.
inmate Dianne R. Prigge, filed this pro se civil rights suit,
see 42 U.S.C.S. § 1983 (2018), in forma pauperis, see 28
Id. § 1915. On November 21, 2018, the Court
screened the Amended Complaint and ordered Plaintiff to file
a second amended complaint to cure deficiencies before
further pursuing claims. Plaintiff responded with a document,
entitled, “Motion to Dismiss, ” but the content
of the document does not match the title. It is construes
instead as a response to the November 21st Order.
the response does not meet the requirement for Plaintiff to
file a second amended complaint to cure the deficiencies in
the Amended Complaint. Still, Plaintiff expresses the need
for more time to meet the requirement and she will be granted
a final thirty days to do so, with repeated guidance, as
Deficiencies in Amended Complaint
(a) possibly alleges claims that concern the
constitutionality of Plaintiff's imprisonment, which
should be brought in a habeas-corpus petition, not a
(b) alleges “a random and unauthorized deprivation of
property under color of state law, ” without
considering that such a claim “does not give rise to a
§ 1983 claim if there is an adequate state
post-deprivation remedy.” See Frazier v
Flores, No. 13-1535, 2014 U.S. App. LEXIS 12936, at *4
(10th Cir. July 9, 2014) (unpublished) (citing Hudson v.
Palmer, 468 U.S. 517, 533 (1984)).
(c) does not affirmatively link some defendants to
(d) brings civil-rights claims against Clark Boulton and
Shannon Hill, who are not properly named, as they are private
citizens, not state actors.
(e) has claims appearing to be based on conditions of current
confinement; however, the complaint was apparently not
submitted using the legal help Plaintiff is entitled to by
his institution under the Constitution. See Lewis v.
Casey, 518 U.S. 343, 356 (1996) (requiring prisoners be
given "'adequate law libraries or adequate
assistance from persons trained in the law' . . . to
ensure that inmates . . . have a reasonably adequate
opportunity to file nonfrivolous legal claims challenging
their convictions or conditions of confinement")
(quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)
Instructions to Plaintiff
of the Federal Rules of Civil Procedure requires a complaint
to contain "(1) a short and plain statement of the
grounds for the court's jurisdiction . . .; (2) a short
and plain statement of the claim showing that the pleader is
entitled to relief; and (3) a demand for the relief
sought." Rule 8's requirements mean to guarantee
"that defendants enjoy fair notice of what the claims
against them are and the grounds upon which they rest."
TV Commc'ns Network, Inc. v ESPN, Inc., 767
F.Supp. 1062, 1069 (D. Colo. 1991).
litigants are not excused from complying with these minimal
pleading demands. "This is so because a pro se plaintiff
requires no special legal training to recount the facts
surrounding his alleged injury, and he must provide such
facts if the court is to determine whether he makes out a
claim on which relief can be granted." Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Moreover,
it is improper for the Court "to assume the role of
advocate for a pro se litigant." Id. Thus, the
Court cannot "supply additional facts, [or] construct a
legal theory for plaintiff that assumes facts that have not
been pleaded." Dunn v. White, 880 F.2d 1188,
1197 (10th Cir. 1989).
should consider the following points before refiling
Plaintiff's complaint. First, the revised complaint must
stand entirely on its own and shall not refer to, or
incorporate by reference, any portion of the original
complaint. See Murray v. Archambo, 132 F.3d ...