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Prigge v. Boulton

United States District Court, D. Utah

January 25, 2019

DIANE R. PRIGGE, Plaintiff,
v.
CLARK BOULTON et al., Defendants.

          SECOND ORDER TO CURE DEFICIENT AMENDED COMPLAINT & MEMORANDUM DECISION

          JUDGE DAVID NUFFER UNITED STATES DISTRICT COURT.

         Plaintiff, 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.

         However, 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 follows:

         A. Deficiencies in Amended Complaint

         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 civil-rights complaint.
(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 LEXIS 12936, at *4 (10th Cir. July 9, 2014) (unpublished) (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984)).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 civil-rights violations.
(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) (emphasis added)).

         B. Instructions to Plaintiff

         Rule 8 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).

         Pro se 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).

         Plaintiff 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 ...


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