United States District Court, D. Utah, Central Division
AMENDED MEMORANDUM DECISION & ORDER ADOPTING
ORDER REPORT AND RECOMMENDATION IN PART AND GRANTING
PLAINTIFF LEAVE TO AMEND COMPLAINT
Waddoups United States District Judge.
Anderson, proceeding in forma pauperis, brought his action
under 42 U.S.C. §§ 1983 and 1985 against State and
County Defendants. On February 20, 2019, the court entered a
Memorandum Decision and Order adopting Magistrate Judge
Furse's recommendation as to the State Defendants. This
resulted in all claims against the State Defendants being
dismissed. (ECF No. 20 at 15.) The court also dismissed the
action against the County Defendants for failure of service.
(ECF No. 20 at 15.)
court may, “on its own, ” correct a mistake found
in an order. (See Fed. R. Civ. P. 60(a)). The court
dismissed Mr. Anderson's claims against the County
Defendants for failure of service. (ECF No. 20.) But Mr.
Anderson is proceeding in forma pauperis. (See ECF
No. 3.) “When a plaintiff is granted in forma pauperis
status, the district court is required to serve process for
the plaintiff.” Olsen v. Mapes, 333 F.3d 1199,
1204 (10th Cir. 2003) (28 U.S.C. § 1915(d)). It was
therefore not Mr. Anderson's “responsibility to
perfect service in the first instance.” Id. at
1205. The court made a mistake when it dismissed the County
Defendants for failure of service. The court will grant Mr.
Anderson leave to amend his complaint-but only to plead a
Fourteenth Amendment claim against the County Defendants. As
explained below, regarding all other claims against the
County Defendants, the court adopts Magistrate Judge
Mr. Anderson's Section 1983 Claims Against the County
1983 itself does not create any substantive rights, but
merely provides relief against those who, acting under color
of law, violate federal rights created elsewhere.”
Reynolds v. Sch. Dist. No. 1, Denver, Colo., 69 F.3d
1523, 1536 (10th Cir. 1995). “That is, § 1983 is a
remedial vehicle for raising claims based on the violation of
constitutional rights.” Brown v. Buhman, 822
F.3d 1151, 1162 n. 9 (10th Cir. 2016). “There can be no
‘violation' of § 1983 separate and apart from
the underlying constitutional violations.” Id.
Alleged Fourth Amendment Violations
Report and Recommendation, Judge Furse recommended that the
court dismiss without prejudice “Mr. Anderson's
§ 1983 . . . claims against the . . . County Defendants
on the grounds that Heck v. Humphrey, 512 U.S. 477
(1994), bars those claims . . . .” (ECF No. 13 at 23.)
The court agrees that Heck bars Mr. Anderson's
Section 1983 claim against the County Defendants-but only his
claim based on violations of his Fourth Amendment rights.
Alleged Violations of Mr. Anderson's “Freedom
Complaint, Mr. Anderson included a second cause of action
entitled “Breach of my Freedom of Movement Under United
States Law.” (ECF No. 4 at 4.) As the court noted in
its previous order, “the facts Mr. Anderson
described” about being forced to travel in subfreezing
temperature to retrieve items from his rental car
“could possibly be characterized as a Fourteenth
Amendment due process violation.” (See ECF No.
20 at 14.) “Dismissal of a pro se complaint for failure
to state a claim is proper only where it is obvious that the
plaintiff cannot prevail on the facts he has alleged and it
would be futile to give him an opportunity to amend.”
Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).
The court does not believe it would be futile to give Mr.
Anderson an opportunity to amend his complaint.
15(a)(2) of the Federal Rules of Civil Procedure provides
that “a party may amend its pleadings” with
“the court's leave.” The court grants Mr.
Anderson leave to amend his complaint in order plead a §
1983 claim against the County Defendants for violations of
his Fourteenth Amendment due process rights. If Mr. Anderson
chooses to submit an Amended Complaint, it must be submitted
to the court within 30 days of entry of this order, otherwise
the case will be dismissed without prejudice.
Mr. Anderson's Section 1985 Claims Against the County
court agrees with Magistrate Judge Furse that Heck
bars Mr. Anderson's Section 1985 claims against the
County Defendants based on violations of his Fourth Amendment
rights. Magistrate Judge Furse also stated that “the
District Court could . . . dismiss Mr. Anderson's §
1985 claims against the . . . County Defendants for failure
to plead any facts in support of [those] claims.” (ECF
No. 13 at 20.) Magistrate Judge Furse also noted that Mr.
Anderson did “not allege a conspiracy among any of the
. . . County Defendants, let alone facts to support the
existence of a conspiracy.” (ECF No. 13 at 20.)
Magistrate Judge Furse also noted that Mr. Anderson
“fail[ed] to ...