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Losee v. Preece

United States District Court, D. Utah

November 13, 2019

KARL LOSEE, Plaintiff,
v.
SGT. PREECE et al., Defendants.

          MEMORANDUM DECISION & ORDER GRANTING MOTION TO DISMISS & REQUIRING CURING OF DEFICIENT AMENDED COMPLAINT

          TENA CAMPBELL JUDGE UNITED STATES DISTRICT COURT

         Plaintiff, inmate Karl Losee, filed this pro se civil rights suit, see 42 U.S.C.S. § 1983 (2019).[1] The Court now grants Defendants' Motion to Dismiss, (Doc. No. 23), and orders Plaintiff to file a second amended complaint to cure deficiencies before further pursuing claims.

         AMENDED COMPLAINT'S DEFICIENCIES

         Amended Complaint:

(a) does not affirmatively link Defendants to most civil-rights violations.
(b) appears to inappropriately allege civil-rights violations on respondeat-superior theory.
(c) does not state basis for violation regarding failure to provide personal assistant.
(d) appears to inappropriately try to state “takings” claim. See Losee v. Petermann, No. 2:13-CV-263-TS (D. Utah Mar. 31, 2016) (dismissing similar claims in Plaintiff's past case).
(e) does not state how lack of records violates federal law.
(f) alleges possible constitutional violations resulting in injuries that appear to be prohibited by 42 U.S.C.S. § 1997e(e) (2019), which reads, "No Federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of a physical injury or the commission of a sexual act.”
(g) does not appear to recognize that Defendants' failure to follow their own promises or jail policy (e.g., regarding grievances) does not necessarily equal federal constitutional violation.
(h) inappropriately alleges civil-rights violations on basis of denied grievances.
(i) needs clarification regarding unnecessary-rigor cause of action under Utah Constitution. (See below.)
(j) does not adequately state claim of inadequate medical treatment. (See below.)
(k) shows confusion about how to state claim of failure to protect. (See below.)

         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 ...


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