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Winfield v. Fairbrother

United States District Court, D. Utah

November 13, 2019

CARL WINFIELD, Plaintiff,
v.
MATHEW FAIRBROTHER et al., Defendants.

          MEMORANDUM DECISION & ORDER TO CURE DEFICIENT THIRD AMENDED COMPLAINT

          TENA CAMPBELL JUDGE UNITED STATES DISTRICT COURT

         Plaintiff, Carl Winfield, 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 Third Amended Complaint, (Doc. No. 23), under its statutory review function, [2] the Court orders Plaintiff to file a fourth amended complaint to cure deficiencies before further pursuing claims.

         THIRD AMENDED COMPLAINT'S DEFICIENCIES

         Third Amended Complaint:

• 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.”
• possibly shows confusion about how to state claim of failure to protect. (See below.)
• possibly asserts claims on the constitutional validity of his sentence, which should be brought in a habeas-corpus petition, not civil-rights complaint.
• asserts claims possibly invalidated by the rule in Heck. (See below.)
• improperly names “Adult Probation and Parole” as § 1983 defendant, though it is not an independent legal entity that can sue or be sued.
• has claims apparently regarding current confinement; however, complaint apparently not drafted with contract attorneys' help.

         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 past complaints. 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, 759 (10th Cir. 2009) (unpublished) (emphasis in original) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008)). Plaintiff should also include, as much as possible, specific dates or at least estimates of when alleged constitutional violations occurred.
(3) Each cause of action, together with the facts and citations that directly support it, should be stated separately. Plaintiff should be as brief as possible while still using enough words to fully explain the “who, ” “what, ” “where, ” “when, ” and “why” of each claim.
(4) Plaintiff may not name an individual as a defendant based solely on his or her supervisory position. See Mitchell v. Maynard, 80 F.2d 1433, 1441 (10th Cir. 1996) (stating supervisory status alone does not support § 1983 liability).
(5) Grievance denial alone with no connection to “violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983." Gallagher v. Shelton, ...

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