United States District Court, D. Utah
ROBERT R. BAKER, Plaintiff,
UTAH BOARD OF PARDONS & PAROLE et al., Defendants.
MEMORANDUM DECISION & DISMISSAL ORDER
NUFFER UNITED STATES DISTRICT JUDGE
Robert R. Baker, filed a pro se civil rights
complaint, see 42 U.S.C.S. § 1983 (2019),
proceeding in forma pauperis, see 28
id. 1915. The Court now screens Plaintiff's
Complaint, using 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. See Id. §§
deciding whether a complaint states a claim upon which relief
may be granted, the Court takes all well-pleaded factual
statements as true and regards them in a light most favorable
to the plaintiff. Ridge at Red Hawk L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
Dismissal is fitting when, viewing those facts as true, the
Court sees that the plaintiff has not posed a
"plausible" right to relief. See Bell Atl.
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 that this plaintiff has a reasonable
likelihood of mustering factual support for these
claims." Red Hawk, 493 F.3d at 1177 (italics in
Court construes 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). The Tenth Circuit holds that, if the
pleadings can reasonably be read "to state a valid claim
on which the plaintiff could prevail, [they should be read]
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, "the proper
function of the district court [is not] 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)). Dismissing the complaint
"without affording the plaintiff notice or an
opportunity to amend is proper only 'when it is patently
obvious that the plaintiff could not prevail on the facts
alleged, and allowing him an opportunity to amend his
complaint would be futile.'" Curley v.
Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (quoting
Hall, 935 F.2d at 1110 (additional quotation marks
Improper Defendant -Affirmative Link
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 each named defendant's personal participation is
essential allegation in civil-rights action). "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, 2009 U.S. App. LEXIS 15944, at *4 (10th Cir. July
20, 2009) (unpublished) (emphasis in original) (quoting
Robbins, 519 F.3d at 1250). Plaintiff may not name
an entity or individual as a defendant based solely on
supervisory position. See Mitchell v. Maynard, 80
F.3d 1433, 1441 (10th Cir. 1996) (stating supervisory status
alone is insufficient to support § 1983 liability).
Further, grievance denial, “by itself without any
connection to the violation of constitutional rights alleged
by plaintiff, does not establish personal participation under
§ 1983." Gallagher v. Shelton, No.
09-3113, 2009 U.S. App. LEXIS 25787, at *11 (10th Cir. Nov.
on this standard, Plaintiff has not linked Defendant Herbert
to a civil-rights violation. Defendant Herbert is thus
dismissed from this action.
Denial of Parole
argues that Utah Board of Pardons and Parole members (BOP)
unconstitutionally departed from state sentencing
guidelines--e.g., “the matrix”--in determining
whether to grant him parole. He alleges BOP did not observe
his due-process rights in his parole proceedings and in
denying him parole when Plaintiff thought warranted.
Plaintiff's allegations do not pass the screening stage
of his complaint here; he has not stated a federal
constitutional violation. After all, "[t]here is no
constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid
sentence." Greenholtz v. Inmates of Neb. Penal &
Corr. Complex, 442 U.S. 1, 7 (1979). "Parole is a
privilege," not a constitutional right. See
Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir.
1992). Furthermore, it is well established that the Utah
parole statute does not create a liberty interest entitling
prisoners to federal constitutional protection. See Malek
v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994). Because
Plaintiff has no substantive liberty interest in parole under
the Federal Constitution, he may not in this federal suit
challenge procedures used to deny him parole. See Olim v.
Wakinekona, 461 U.S. 238, 250 (1983). The Court
thus concludes that Plaintiff fails to state a claim here.
Constitutionality of Utah's Indeterminate-Sentencing
attacks the constitutionality of Utah's
indeterminate-sentencing scheme. The same challenges were
soundly rejected by the Tenth Circuit. See Straley v.
Utah Bd. of Pardons,582 F.3d 1208 (10th Cir. 2009),
cert. denied, 559 U.S. 991 (2010). On this basis