United States District Court, D. Utah
MEMORANDUM DECISION & ORDER TO SHOW
STEWART JUDGE UNITED STATES DISTRICT COURT
Wesley Thompson, brings this pro se prisoner-rights
action, see 42 U.S.C.S. § 1983 (2019),
in forma pauperis, see 28 Id.
§ 1915. Having now screened the Complaint, (Doc. No. 6),
under its statutory review function,  the Court orders Plaintiff
to show cause why the complaint should not be dismissed.
names the following defendants: United States President
Donald Trump; Utah State Prison Warden Scott Crowther;
Central Utah Correctional Facility (CUCF) Officer Keith
Holder; CUCF Officer Michal George; CUCF Officer Melvin
Coulter; and CUCF Officer Eric Ludvingson. He
alleges these defendants violated his federal constitutional
rights regarding events leading up to his rape by a cellmate
on August 5, 2011.
concedes that he already brought an unsuccessful federal
civil-rights complaint about the rape. Thompson v.
Coulter, No. 2:12-CV-680-CW, 2016 U.S. Dist. LEXIS 32662
(D. Utah Mar. 14, 2016) (dismissing claims as to August 5,
2011 Plaintiff's rape by cellmate for failure to
exhaust). The Tenth Circuit affirmed. No. 16-4042 (10th Cir.
Feb. 28, 2017) (unpublished). The United States Supreme Court
denied certiorari review. No. 16-9685 (Oct. 2, 2017).
here brings in some new defendants and tries to relitigate
the exhaustion issue, requesting relief from these rulings on
the basis of “equitable tolling, ” due to
“emotional trauma and physical trauma from the incident
and for fear from perceived threats from inmates and
officers.” (Doc. No. 6, at 3.)
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
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 personal participation of each defendant is
essential allegation). "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, slip op. at 4 (10th Cir. July 20,
2009) (unpublished) (emphasis in original) (quoting
Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir.
2008)). Plaintiff may not name an individual as a defendant
based solely on supervisory status. See Mitchell v.
Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating
supervisory status alone is insufficient to support liability
under § 1983). Nor does "denial of a grievance, by
itself without any connection to the violation of
constitutional rights alleged by plaintiff . . . establish
personal participation under § 1983." Gallagher
v. Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787, at
*11 (10th Cir. Nov. 24, 2009).
these guidelines, the Court concludes that Plaintiff has done
nothing to affirmatively link Defendants Trump and Crowther to
his claims. He has not tied any material facts to them.
Plaintiff's claims against these defendants may not
survive this omission. The Court thus proposes to dismiss