Sanchez v. Lyman

• Court: District Court, D. Utah
• Decided: April 15, 2020
• Docket: 2:18-cv-00069
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

GREG PAUL REVERE SANCHEZ, MEMORANDUM DECISION & Plaintiff, ORDER TO CURE DEFICIENT AMENDED COMPLAINT v.

BEAVER COUNTY SHERIFF et al., Case No. 2:18-CV-69-DAK

Defendants. District Judge Dale A. Kimball

Plaintiff, inmate Greg Paul Revere Sanchez, brings this pro se civil-rights action, see 42 U.S.C.S. § 1983 (2020),1 in forma pauperis, see 28 id. § 1915. Having now screened the Amended Complaint, (ECF No. 29), under its statutory review function,2 the Court orders Plaintiff to file a second amended complaint to cure deficiencies before further pursuing claims.

1The 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 (2020). 2 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 (2020). AMENDED COMPLAINT’S DEFICIENCIES Amended Complaint: (a) improperly names Beaver County Sheriff's Office and Jail as § 1983 defendants, when they are not independent legal entities that can sue or be sued. See Burnett v. Reno County Comm’n, No. 18-3160-SAC, 2019 U.S. Dist. LEXIS 32844, at *6 (D. Kan. Mar. 1, 2019) (“Police departments . . . are not suable entities under § 1983, because they lack legal identities apart from the municipality.”) (quotation marks and citations omitted); Smith v. Lawton Corr. Facility, No. CIV-18-110-C, 2018 U.S. Dist. LEXIS 45488, at * 5 (W.D. Okla. Mar. 7, 2018) (stating correctional facilities “not suable entities in a § 1983 action”).

(b) possibly asserts claims on the constitutional validity of his imprisonment and requests remedy of release from custody, which claims and requests should be brought in a habeas-corpus petition, not civil-rights complaint.

(c) asserts claims possibly invalidated by the rule in Heck. (See below.)

(d) does not properly affirmatively link some defendants to civil-rights violations. (See below.)

(e) alleges possible constitutional violations (e.g., rude language) resulting in injuries that appear to be prohibited by 42 U.S.C.S. § 1997e(e) (2020), 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.”

(f) does not properly state a claim of inadequate medical treatment. (See below.)

(g) possibly asserts claims past the statute of limitations for a civil-rights case (See below.)

(h) possibly tries to bring civil-rights claims against public defenders and/or private attorneys and citizens, who are not properly named, as they are not state actors under § 1983.

(i) possibly improperly names judges as defendants, apparently without considering judicial immunity. (See below.)

(j) possibly improperly names prosecutors as defendants, apparently without considering prosecutorial immunity. (See below.)

(k) possibly inappropriately requests relief for a third party.

(l) includes ten pages of rambling narrative, defying the Court's ability to tease out all possible defendants and claims. 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: (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.3

3 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 (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 F. App’x 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).

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. (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) (2019). 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 claims appear to include 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 F. App'x 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. • Affirmative Link [A] plaintiff who brings a constitutional claim under § 1983 can't obtain relief without first satisfying the personal-participation requirement. That is, the plaintiff must demonstrate the defendant "personally participated in the alleged constitutional violation" at issue. Vasquez v. Davis, 882 F.3d 1270, 1275 (10th Cir. 2018). Indeed, because § 1983 is a "vehicle[] for imposing personal liability on government officials, we have stressed the need for careful attention to particulars, especially in lawsuits involving multiple defendants." Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013); see also Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (explaining that when plaintiff brings § 1983 claims against multiple defendants, "it is particularly important . . . that the complaint make clear exactly who is alleged to have done what to whom"); Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532-33 (10th Cir. 1998)) (holding that district court's analysis of plaintiff's § 1983 claims was "infirm" where district court "lump[ed]" together plaintiff's claims against multiple defendants--"despite the fact that each of the defendants had different powers and duties and took different actions with respect to [plaintiff]"--and "wholly failed to identify specific actions taken by particular defendants that could form the basis of [a constitutional] claim").

Estate of Roemer v. Johnson, 764 F. App’x 784, 790-91 (10th Cir. 2019). “A plaintiff’s failure to satisfy this requirement will trigger swift and certain dismissal.” Id. at 790 n.5. Indeed, the Tenth Circuit has “gone so far as to suggest that failure to satisfy the personal-participation requirement will not only justify dismissal for failure to state a claim; it will render the plaintiff’s claim frivolous.” Id. • Inadequate Medical Treatment The Eighth Amendment’s ban on cruel and unusual punishment requires prison officials to “provide humane conditions of confinement” including “adequate . . . medical care.” Craig v. Eberly, 164 F.3d 490, 495 (10th Cir. 1998)) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998)). To state a cognizable claim under the Eighth Amendment for failure to provide proper medical care, “a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (emphasis in original) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Any Eighth Amendment claim must be evaluated under objective and subjective prongs: (1) “Was the deprivation sufficiently serious?” And, if so, (2) “Did the officials act with a

sufficiently culpable state of mind?” Wilson v. Seiter, 501 U.S. 294, 298 (1991). Under the objective prong, a medical need is “sufficiently serious . . .if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Sealock, 218 F.3d at 1209 (citations & quotation marks omitted). The subjective component requires the plaintiff to show that prison officials were consciously aware that the prisoner faced a substantial risk of harm and wantonly disregarded the risk “by failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). “[T]he ‘inadvertent failure to provide adequate medical care’ tantamount to negligence does not satisfy the deliberate indifference standard.” Sparks v. Singh, 690 F. App’x 598, 604

(10th Cir. 2017) (unpublished) (quoting Estelle v. Gamble, 429 U.S. 97, 105–06 (1976)). Furthermore, “a prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.” Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 811 10th Cir. 1999); see also Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010) (“Disagreement with a doctor’s particular method of treatment, without more, does not rise to the level of an Eighth Amendment violation.”). • Statute of Limitations "Utah's four-year residual statute of limitations . . . governs suits brought under section 1983.” Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). Plaintiff's claims accrued when "'facts that would support a cause of action are or should be apparent.'” Id. at 675 (citation omitted. From the face of the amended complaint, some circumstances underlying these claims appear to have occurred more than four years before this case was filed.

• Judicial Immunity It is well settled that judges "are absolutely immune from suit unless they act in 'clear absence of all jurisdiction,' meaning that even erroneous or malicious acts are not proper bases for § 1983 claims." Segler v. Felfam Ltd. P'ship, 324 F. App'x 742, 743 (10th Cir. 2009) (unpublished) (quoting Stump v. Sparkman, 435 U.S. 349, 356-57 (1978)). The judges here very well may have been acting in a judicial capacity in presiding over Plaintiff’s case(s); if so, such actions are entitled to absolute immunity. See Doran v. Sanchez, 289 F. App'x 332, 332 (10th Cir. 2008) (unpublished). • Prosecutorial Immunity A prosecutor acting within the scope of his duties enjoys absolute immunity from suit

under § 1983. Imbler v. Pachtman, 424 U.S. 409, 424 (1976). The prosecutors’ acts, as alleged by Plaintiff, appear to relate to advocacy before the court. These possible defendants therefore may be entitled to absolute prosecutorial immunity from this lawsuit. 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 is no longer than twenty pages long and 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 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 shall not try to serve the second 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) (2020) (“The officers of the court shall issue and serve all process, and perform all duties in [in forma pauperis] cases.”). (5) Plaintiff's further requests for appointed counsel in his amended complaint and letters are DENIED, for the same reasons his initial motion, (ECF No. 3), for appointed counsel was denied, (ECF No. 5). (6) THE COURT WILL NOT ACCEPT ANY FILINGS FROM PLAINTIFF EXCEPT

FOR ONE DOCUMENT LABELED, "SECOND AMENDED COMPLAINT," UNTIL FURTHER FILINGS ARE SPECIFICALLY INVITED BY THE COURT. The Clerk’s Office is ordered to return to sender any attempted filing except for a second amended complaint until further notice by the Court. This is made necessary by the overwhelming nature of Plaintiff’s uninvited voluminous, vexatious and repetitive filings in the two cases he has brought before this Court so far. DATED this 15th day of April, 2020. BY THE COURT:

JUDGE DALE A. KIMBALL United States District Court