Opinion
4:21-CV-15-DN
07-24-2022
OLEG SOCOLOV, Plaintiff, v. UNITED STATES OF AMERICA et al., Defendants.
MEMORANDUM DECISION & ORDER TO CURE DEFICIENT AMENDED COMPLAINT
DAVID NUFFER UNITED STATES DISTRICT COURT JUDGE
Plaintiff, inmate Oleg Socolov, brings this pro se civil-rights action, see 42 U.S.C.S. § 1983 (2022), in forma pauperis, see 28 Id. § 1915. Having now screened the Amended Complaint, (ECF No. 8), under its statutory review function, the Court orders Plaintiff to file a second 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 (2022).
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 (2022).
AMENDED COMPLAINT'S DEFICIENCIES
The Amended Complaint:
(a) appears to inappropriately allege civil-rights violations against some defendants (e.g., Chief Deputy Sheriff Kevin Moore) on a respondeat-superior theory--i.e., supervisor liability. See (4) on page 4.
(b) possibly improperly names a county prosecutor as a defendant, apparently without considering prosecutorial immunity. (See below.)
(c) apparently improperly names the United States and Immigration and Customs Enforcement as Bivens defendants. See Barrow v. Doe, No. 14-CV-2464-BNB, 2014 U.S. Dist. LEXIS 130250, at *1 (D. Colo. Sept. 17, 2014) ("The United States, as sovereign, is immune from suit unless it expressly consents to be sued. United States v. Testan, 424 U.S. 392, 399 (1976); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 410 (1971); Ascot Dinner Theatre, Ltd. v. Small Business Admin., 887 F.2d 1024, 1027 (10th Cir. 1989).").
(d) possibly asserts constitutional violations--e.g., rude or insulting language--resulting in injuries that appear to be prohibited by 42 U.S.C.S. § 1997e(e) (2022), reading, "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.”
(e) alleges conspiracy claims that are too vague. (See below.)
(f) asserts claims possibly invalidated by the rule in Heck. (See below.)
(g) has claims possibly based on conditions and fact of current confinement; however, the complaint was apparently not submitted using legal help Plaintiff entitled to by his institution under 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 receive "'fair notice of what the claim is and the grounds upon which it rests.'" Stanko v. Davis, 297 Fed.Appx. 746, 748 (10th Cir. 2008) (unpublished) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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:
(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. 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.
(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. 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.").
(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, 587 F.3d 1063, 1069 (10th Cir. 2009).
(6) “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).
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.
• Prosecutorial Immunity
A prosecutor acting within the scope of their duties enjoys absolute immunity from suit under § 1983. Imbler v. Pachtman, 424 U.S. 409, 424 (1976). The prosecutor's acts, as alleged by Plaintiff, possibly relates to advocacy before the court. This possible defendant therefore may be entitled to absolute prosecutorial immunity from this lawsuit.
• Conspiracy
As to Plaintiff's potential conspiracy claims, he "must specifically plead 'facts tending to show agreement and concerted action.'" Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (quoting Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir. 1983)). Plaintiff has not met this responsibility in his current complaint; his vague assertions that multiple people were involved in effecting breaches of his civil rights, and, therefore, a conspiracy must be involved, are not enough. He must assert more detail to pursue this claim further.
• Heck
Plaintiff's claims appear to include some allegations that if true may invalidate his conviction or sentence, if he has been convicted or sentenced. "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 possibly not happened and may result in dismissal of such claims.
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, “Second Amended Complaint,” that does not refer to or include any other document. The Second Amended Complaint MAY NOT include claims outside or beyond what was already contained in the complaints originally filed here.
(2) The Clerk's Office shall mail Plaintiff the Pro Se Litigant Guide with a blank-form civil-rights complaint which Plaintiff must use if he wishes to pursue another amended complaint.
(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 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.”).
(5) 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.
(6) 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.
(7) Plaintiff's motions for service of process are DENIED. (ECF Nos. 9, 10.) There is no valid complaint on file as of this Order. Further, no further motion for service of process is needed here. See 28 U.S.C.S. § 1915(d) (2022) (“The officers of the court shall issue and serve all process, and perform all duties in [in forma pauperis] cases.”). Instead, on its own, the Court will perform its screening function and determine itself whether the amended complaint warrants service.
BY THE COURT: