The opinion
THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
JUSTIN F. BROWN,
MEMORANDUM DECISION &
Plaintiff, ORDER TO SHOW CAUSE
v.
Case No. 2:22-CV-435-DAK
BLAKE HILLS,
District Judge Dale A. Kimball
Defendant.
Having screened Plaintiff's pro se prisoner civil-rights Complaint,1 under its statutory
review function,2 the Court proposes to dismiss this action because Plaintiff has failed to state a
claim upon which relief may be granted. (ECF No. 5.)
1 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 (2023).
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 (2023).
Plaintiff names as defendant Blake Hills, whom Plaintiff alleges prosecuted a crime
against Plaintiff in 2014.3 (Id.) Plaintiff asserts Defendant violated Plaintiff's federal
constitutional rights by prosecuting Plaintiff in state court without "statutory authority," as
Plaintiff's crime was committed in the Veteran's Affairs Hospital, which Plaintiff contends is
under federal jurisdiction. (Id.) Plaintiff's "Request for Relief" asks for release from custody.
(Id.)
I. ANALYSIS
When deciding if a complaint states a claim upon which relief may be granted, the Court
takes all well-pleaded factual statements as true and regards them in a light most favorable to the
plaintiff. Ridge at Red Hawk L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
Dismissal is fitting when, viewing those facts as true, the Court sees that the plaintiff has not
posed a "plausible" right to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007);
Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). Plaintiff has the burden "to
frame a 'complaint with enough factual matter (taken as true) to suggest'" entitlement to relief.
Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556). When a civil rights complaint
contains "bare assertions," involving "nothing more than a 'formulaic recitation of the elements'
of a constitutional . . . claim," the Court considers those assertions "conclusory and not entitled
to" an assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009) (quoting Twombly,
3 Plaintiff also asserts Defendant Hills is now a member of Utah's Board of Pardons and Parole (UBOP),
and, "there has been multiple questionable actions by the Board concerning [Plaintiff's] parole." (ECF No. 5.)
Because Plaintiff has not specifically connected Defendant to these questionable actions, nor has Plaintiff detailed
the questionable actions, the Court does not further address these allegations. Plaintiff may want to bear in mind that
UBOP members "are 'absolutely immune from damages liability for actions taken in performance of the Board's
official duties regarding the granting or denying of parole.'" Wach v. Cochran, No. 22-4077, 2023 U.S. App. LEXIS
726, at *3 (10th Cir. Jan. 12, 2023) (unpublished) (quoting Knoll v. Webster, 838 F.2d 450, 451 (10th Cir. 1988)
(per curiam)).
550 U.S. at 554-55). In other words, "the mere metaphysical possibility that some plaintiff could
prove some set of facts in support of the pleaded claims is insufficient; the complaint must give
the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual
support for these claims." Red Hawk, 493 F.3d at 1177 (italics in original).
The Court construes pro se "'pleadings liberally,' applying a less stringent standard than is
applicable to pleadings filed by lawyers. Th[e] court, however, will not supply additional factual
allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf."
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citations omitted). The Tenth
Circuit holds that, if pleadings can reasonably be read "to state a valid claim on which the
plaintiff could prevail, [they should be read] so despite the plaintiff's failure to cite proper legal
authority, his confusion of various legal theories, his poor syntax and sentence construction, or
his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Still, "the proper function of the district court [is not] to assume the role of advocate for
the pro se litigant." Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998).
Dismissing the complaint "without affording the plaintiff notice or an opportunity to amend is
proper only 'when it is patently obvious that the plaintiff could not prevail on the facts alleged,
and allowing him an opportunity to amend his complaint would be futile.'" Curley v. Perry, 246
F.3d 1278, 1281-82 (10th Cir. 2001) (quoting Hall, 935 F.2d at 1110 (additional quotation marks
omitted)).
A. 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). The circumstances underlying these claims appear to have occurred more than four
years before this case was filed. The face of the complaint states that the claims against
Defendants accrued by December 8, 2014--nearly eight years before the Complaint was filed on
June 30, 2022. The Court thus proposes to dismiss this case under the statute of limitations.
Jamerson v. Heimgartner, 752 F. App'x. 557, 562 (10th Cir. Sept. 21, 2018) (unpublished) ("A
district court may dismiss a complaint sua sponte under § 1915A(b)(1) based on an affirmative
defense such as the statute of limitations when 'the defense is obvious from the face of the
complaint and no further factual record is required to be developed.'" (quoting Fogle v. Pierson,
435 F.3d 1252, 1258 (10th Cir. 2006) (quotations omitted))).
B. Prosecutorial Immunity
The Complaint further alleges claims of unconstitutional behavior by Defendant in
seeking Plaintiff's criminal conviction. Prosecutors acting within the scope of their duties enjoy
absolute immunity from § 1983 actions. Imbler v. Pachtman, 424 U.S. 409, 424 (1976).
Defendant's acts, as alleged by Plaintiff, appear to regard advocacy in court proceedings.
Defendant is therefore entitled to absolute prosecutorial immunity from claims, and the Court
proposes this as an alternative basis for dismissal.
C. Habeas Relief
Plaintiff requests "immediate release." (ECF No. 5.) However, the statute Plaintiff
invokes, § 1983, does not allow a habeas-corpus remedy. See Crabtree v. Oklahoma, 564 F.
App'x 402, 404 (10th Cir. 2014) (unpublished). Earlier release from incarceration may be
attained in court by a writ of habeas corpus only, not by a civil-rights case. See Preiser v.
Rodriguez, 411 U.S. 475, 489-90 (1973); Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). Because
the Complaint makes no claim to support habeas relief, this Court lacks authority to grant
Plaintiff's discharge from custody. See Crabtree, 564 F. App'x at 404. The Complaint also may
not be construed as a habeas petition; although courts must liberally construe pro se pleadings
like Plaintiff's, that duty typically does not compel characterization of civil-rights claims as
habeas claims. See id. Indeed, courts have limited power to reframe civil-rights claims in that
way. See Davis v. Roberts, 425 F.3d 830, 834-35 (10th Cir. 2005). Notably, Plaintiff does not ask
that the Complaint be read as raising something aside from civil-rights claims. See Crabtree, 564
F. App'x at 404.
The Court thus proposes to deny Plaintiff's request for release from custody, as another
alternative basis for dismissal.
II. MOTION TO APPOINT COUNSEL
The Court now addresses Plaintiff's motion for the Court to ask pro bono counsel to
represent Plaintiff. Plaintiff has no constitutional right to counsel. See Carper v. Deland, 54 F.3d
613, 616 (10th Cir. 1995); Bee v. Utah State Prison, 823 F.2d 397, 399 (10th Cir. 1987).
However, the Court may in its discretion appoint counsel for indigent plaintiffs. See 28 U.S.C.S.
§ 1915(e)(1) (2023); Carper, 54 F.3d at 617; Williams v. Meese, 926 F.2d 994, 996 (10th Cir.
1991). Plaintiff has the burden of convincing the Court that Plaintiff's claim has enough merit to
warrant appointment of counsel. McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985).
In deciding whether to ask counsel to represent Plaintiff free of charge, this Court
considers a variety of factors, like "'the merits of the litigant's claims, the nature of the factual
issues raised in the claims, the litigant's ability to present his claims, and the complexity of the
legal issues raised by the claims." Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)
(quoting Williams, 926 F.2d at 996); accord McCarthy, 753 F.2d at 838-39. Considering the
above factors, the Court concludes here that Plaintiff's claims are not colorable, the issues are not
complex, and Plaintiff is not too incapacitated or unable to adequately function in pursuing this
matter. Thus, the Court denies Plaintiff's motion for appointed counsel.
Ill. ORDER
IT IS ORDERED that:
(1) Plaintiff must within thirty days SHOW CAUSE why this Complaint should not be
dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C:S. §
1915(e)(2)(B) (2023).
(2) Plaintiff's motion for appointed counsel is DENIED. (ECF No. 16.)
DATED this 31°! day of July, 2023.
BY THE COURT:
Lo 4
JUDGE DALE A. 4 .
United States District Court