Opinion
1:21-CV-89-TC
11-01-2021
DANIEL HERRERA, Plaintiff, v. BRENT M. JOHNSON, Defendant.
MEMORANDUM DECISION &ORDER TO CURE DEFICIENT COMPLAINT
TENA CAMPBELL UNITED STATES DISTRICT COURT JUDGE
In this pro se prisoner civil-rights action, see 42 U.S.C.S. § 1983 (2021), having screened Plaintiff's Complaint, (ECF No. 6), under its statutory review function, the Court orders Plaintiff to file an amended complaint to cure deficiencies before further pursuing claims.
The federal statute creating a “civil action for deprivation of rights” reads, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.42 U.S.C.S. § 1983 (2021).
The screening statute reads:
(a) Screening.-The court shall review . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.-On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.28 U.S.C.S. § 1915A (2021).
COMPLAINT'S DEFICIENCIES
Complaint:
(a) is not on form complaint required by Court.
(b) does not set forth affirmative link between Defendant and constitutionally invalid activity.
(c) possibly asserts claims attacking validity of conviction and sentence execution, which should be brought in habeas-corpus petition, not civil-rights complaint.
(d) asserts allegations possibly invalidated by rule in Heck. (See below.)
(e) is perhaps supplemented with claims from documents filed after Complaint, which claims should be included in amended complaint, if filed, and will not be treated further by the Court unless properly included.
(f) states crimes by government actors must be redressed; however, federal civil-rights is not proper vehicle to address criminal behavior.
(g) requests termination of Defendant's state employment and future retirement, which is not within this Court's authority to grant.
(h) possibly invalidly requests compassionate release. (See below.)
(i) has claims apparently regarding 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 meeting 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:
(i) The revised complaint must stand entirely on its own and shall not refer to, or incorporate by reference, any portion of the original complaint. 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.
The rule on amending a pleading reads:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. In all other cases, a party may amend its pleadings only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.Fed. R. Civ. P. 15.
(ii) 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.
(iii) 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. Robbins, 519 F.3d at 1248 ("The [Bell Atlantic Corp. v.] Twombly Court was particularly critical of complaints that 'mentioned no specific, time, place, or person involved in the alleged [claim].' [550 U.S. 544, 565] n.10 (2007). Given such a complaint, 'a defendant seeking to respond to plaintiff's conclusory allegations . . . would have little idea where to begin.' Id.").
(iv) Plaintiff may not name an individual as a defendant based solely on supervisory position. See Mitchell v. Maynard, 80 F.2d 1433, 1441 (10th Cir. 1996) (stating supervisory status alone does not support § 1983 liability).
(v) Grievance denial alone with no connection to “violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983." Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009).
(vi) “No action shall be brought with respect to prison conditions under . . . Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C.S. § 1997e(a) (2021). However, Plaintiff need not include grievance details in his complaint. Exhaustion of administrative remedies is an affirmative defense that must be raised by Defendants. Jones v. Bock, 549 U.S. 199, 216 (2007).
• Heck
Plaintiff's includes some allegations that if true may invalidate his conviction or sentence. "In Heck, the Supreme Court explained that a § 1983 action that would impugn the validity of a plaintiff's [incarceration] cannot be maintained unless the [basis for incarceration] has been reversed on direct appeal or impaired by collateral proceedings." Nichols v. Baer, 315 Fed.Appx. 738, 739 (10th Cir. 2009) (unpublished) (citing Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)). Heck keeps litigants "from using a § 1983 action, with its more lenient pleading rules, to challenge their conviction or sentence without complying with the more stringent exhaustion requirements for habeas actions." Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007) (citation omitted). Heck clarifies that "civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments." 512 U.S. at 486.
Plaintiff argues that his constitutional rights were breached in a way that may attack Petitioner's very imprisonment. Heck requires that, if a plaintiff requests § 1983 damages, this Court must decide whether judgment for the plaintiff would unavoidably imply that Plaintiff's incarceration is invalid. Id. at 487. Here, it appears it may on some claims. If this Court were to conclude that Plaintiff's constitutional rights were violated in a prejudicial manner, it would be stating that Plaintiff's incarceration was not valid. Thus, the involved claims "must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Id. This has apparently not happened and may result in dismissal of such claims.
• Compassionate Release
The federal compassionate-release statute allows a district court to "reduce [a] term of imprisonment" of prisoners in federal custody "upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier." 18 USCS § 3582(c)(1)(A) (2021). Thus, a court may order an inmate to be released if the court concludes that "extraordinary and compelling reasons warrant such a reduction; . . . and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. However, Plaintiff is in state custody; the Court "does not have the authority to order a compassionate release from state custody, which is a matter of state law." Puerner v. Smith, No. 09-C-1051, 2009 U.S. Dist. LEXIS 120169, at *3 (E.D. Wis. Dec. 3, 2009); see also Teague v. Colorado, No. 20-CV-1425-PAB, 2020 U.S. Dist. LEXIS 109733, at *14 (D. Colo. June 22, 2020); Williams v. Keiser, No. 17-CV-1040, 2020 U.S. Dist. LEXIS 74397, at *3-4 (W.D.N.Y. Apr. 28, 2020) (denying motion for compassionate release when inmate in state custody); United States v. Tillisy, No. CR13-310 RSL-MLP, 2020 U.S. Dist. LEXIS 68086, at *3-4 (W.D. Wash. Apr. 17, 2020) (same). Plaintiff's possible claim for compassionate release is therefore infirm.
ORDER
IT IS HEREBY ORDERED that:
(1) Plaintiff must within thirty days cure the amended complaint's deficiencies noted above by filing a document entitled, “Amended Complaint, ” that does not refer to or include any other document.
(2) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a blank-form civil-rights complaint and habeas-corpus petition which Plaintiff must use if he wishes to pursue his potential claims further.
(3) If Plaintiff fails to timely cure the above deficiencies according to this Order's instructions, this action will be dismissed without further notice.
(4) Plaintiff shall not try to serve the amended complaint on Defendants; instead, the Court will perform its screening function and determine itself whether the amended complaint warrants service. No motion for service of process is needed. See 28 U.S.C.S. § 1915(d) (2021) (“The officers of the court shall issue and serve all process, and perform all duties in [in forma pauperis] cases.”).
(5) Plaintiff must tell the Court of any address change and timely comply with Court orders. See D. Utah Civ. R. 83-1.3(e) ("In all cases, counsel and parties appearing pro se must notify the clerk's office immediately of any change in address, email address, or telephone number."). Failure to do so may result in this action's dismissal for failure to prosecute. See Fed.R.Civ.P. 41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits.”).
(6) Time extensions are disfavored, though reasonable extensions may be granted. Any motion for time extension must be filed no later than fourteen days before the deadline to be extended.
(7) No direct communication is to take place with any judge. All relevant information, letters, documents, and papers, labeled with case number, are to be directed to the Clerk of Court.