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Lakhumna v. SGT. Messenger

United States District Court, D. Utah

May 29, 2019

VIVEK LAKHUMNA, Plaintiff,
v.
SGT. MESSENGER at al., Defendants.

          MEMORANDUM DECISION & ORDER TO CURE DEFICIENT SECOND AMENDED COMPLAINT

          DAVID NUFFER UNITED STATES DISTRICT COURT JUDGE

         Plaintiff, Vivek Lakhumna, brings this pro se civil-rights action, see 42 U.S.C.S. § 1983 (2019), [1] in forma pauperis, see 28 Id. § 1915. Having now screened the Second Amended Complaint, (Doc. No. 14), under its statutory review function, [2] the Court orders Plaintiff to file a third amended complaint to cure deficiencies before further pursuing claims.

         SECOND AMENDED COMPLAINT'S DEFICIENCIES

         Second Amended Complaint:

(a) does not properly affirmatively link Defendants to civil-rights violations (e.g., Sgt. Messenger).
(b) is not on the form complaint required by the Court.
(c) appears to inappropriately allege civil-rights violations on respondeat-superior theory (e.g., Jail Commander Irene Brown).
(d) improperly asserts a retaliation claim. (See below.)
(e) needs clarification regarding Equal Protection Clause cause of action. (See below.)
(f) does not appear to state a proper legal-access claim. (See below.)
(g) is perhaps supplemented with claims from complaints filed before the Second Amended Complaint, which claims should be included in the third amended complaint, if filed, and will not be treated further by the Court unless properly included.
(h) 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)).

         GUIDANCE FOR 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 these general points before filing an amended complaint:

         (1) The revised complaint must stand entirely on its own and shall not refer to, or incorporate by reference, any portion of the original complaint(s). See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (stating amended complaint supersedes original). The amended complaint may also not be added to after it is filed without moving for amendment.[3]

         (2) The complaint must clearly state what each defendant--typically, a named government employee--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 named defendant 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, 338 Fed.Appx. 757, (10th Cir. 2009) (unpublished) (emphasis in original) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. ...


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