                                                                      F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                          PUBLISH
                                                                    October 31, 2006
                      UNITED STATES CO URT O F APPEALS            Elisabeth A. Shumaker
                                                                      Clerk of Court
                                  TENTH CIRCUIT



    ED W A RD AR LEN JO H N SO N ,

                Plaintiff-Appellant,

    v.                                                  No. 06-4065

    A RLEN JO H N SO N ; STA TE O F
    UTA H; UTA BU S; UTA H STATE
    PR ISO N ; ZIO N S B AN K ; JU D GE
    FN U BROWN ,

                Defendants,

          and

    M IDVALE PO LICE; SHERIFF
    AARON D. KENNARD, Salt Lake
    County Jail,

                Defendants-Appellees.



            A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                         FOR T HE DISTRICT OF UTAH
                           (D.C. No. 2:05-CV-749-TS)


Submitted on the briefs: *




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Edward Arlen Johnson, pro se.

David L. Church, Blaisdell and Church, Salt Lake City, Utah, for M idvale Police
Defendant-Appellee.

T.J. Tsakalos and N .M . D ’A lesandro, Salt Lake City, Utah, for Sheriff Aaron D.
Kennard Defendant-Appellee.


Before H EN RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.


PE R C U RIA M .




      Plaintiff Edw ard Arlen Johnson appeals from the district court’s judgment

dismissing his case pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim

on which relief can be granted. W e have jurisdiction under 28 U.S.C. § 1291, and

we affirm in part, reverse in part, and remand.

                                  I. Background

      M r. Johnson proceeds pro se and in forma pauperis on appeal, as he did in

the district court. He filed his civil rights complaint under 42 U.S.C. § 1983

asserting claims based on his arrest by the M idvale City Police Department

(M CPD ) and subsequent detainment at the Salt Lake County Jail (SLCJ). M uch

of the complaint is difficult to read or understand. The district court construed it

as setting forth two causes of action that could not be dismissed under 28 U.S.C.

§ 1915(e)(2): (1) false arrest against the M CPD’s C hief of Police, Gerald

M aughn; and (2) unlawful detention and/or imprisonment against Aaron Kennard,

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the Salt Lake County Sheriff, who had ultimate authority over the SLCJ. The

district court dismissed the remainder of the claims for failure to state a claim

upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

Despite expressing concern about M r. Johnson’s ability to present his claims, the

district court denied his motion to appoint counsel “for now.” R., Doc. 7 at 2.

      Sheriff Kennard moved for a more definite statement pursuant to Fed. R.

Civ. P. 12(e), which the district court granted. In his response to that motion,

M r. Johnson stated that Sheriff Kennard was responsible for the safety of the

inmates and the actions of his staff during the time M r. Johnson was in custody in

the SLCJ and that the jail staff does not care about prisoner safety. See R.,

Doc. 21 at 1. It appears that M r. Johnson also tried to provide the name of one of

the jail staff, but the name is not clear. See id. at 2. He further stated that “the

jail staff is treating me like the dead[;] when I came in they harmed me.” Id. at 4.

      Despite the district court’s construction of M r. Johnson’s first claim as one

against Chief M aughn, the M CPD, not Chief M aughn, filed a motion to dismiss

the complaint against it for failure to state a claim upon which relief can be

granted under Rule 12(b)(6). Sheriff Kennard also filed a motion to dismiss the

complaint against him under Rule 12(b)(6). The district court granted both

motions and dismissed the complaint. This appeal followed.




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                                    II. Analysis

      W e review de novo the district court’s dismissal of M r. Johnson’s

complaint pursuant to Rule 12(b)(6), accepting all well-pleaded allegations as true

and viewing them in the light most favorable to M r. Johnson. See Sutton v. Utah

State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). Because

M r. Johnson appears pro se, we review his pleadings and other papers liberally

and hold them to a less stringent standard than those drafted by attorneys. See

Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Hall v. Bellmon, 935

F.2d 1106, 1110 & n.3 (10th Cir. 1991). Dismissal of a pro se complaint under

Rule 12(b)(6) for failure to state a claim “is proper only where it is obvious that

the plaintiff cannot prevail on the facts he has alleged and it would be futile to

give him an opportunity to amend.” Oxendine v. Kaplan, 241 F.3d 1272, 1275

(10th Cir. 2001) (quotation omitted).

      A. The M CPD’s motion to dismiss

      The district court granted the M CPD’s motion to dismiss because

M r. Johnson had identified no municipal policy or custom the execution of which

caused his injury, a requirement for claims against municipalities under M onell v.

Department of Social Services, 436 U.S. 658, 694 (1978). M r. Johnson does not

challenge this ruling on appeal, which we affirm without discussion. Instead, he

argues that the district court misconstrued his complaint as being against all




                                         -4-
police officers of the M CPD whereas his claim is really against only “those who

[did] w rong.” Aplt. O pening Br. at 5 (page numbered “4”).

      Although M r. Johnson’s inartful pleadings and other filings rendered the

district court’s job difficult, we agree with this claim of error. In his complaint,

M r. Johnson states that he was “taken to Jail S.L. County by police two . . . of

midval utah” [sic generally]. R., Doc. 3 at 4. In its initial consideration of this

claim, the district court stated that M r. Johnson had “accuse[d] un-named M idvale

City Police officers of false arrest” but construed it as a claim against Chief

M aughn. Id., Doc. 8 at 2 n.2. In a letter responding to the M CPD’s motion to

dismiss, M r. Johnson stated that two officers, one of whom he unclearly identified

by name, arrested him after his father had falsely reported that M r. Johnson had

assaulted him and that the officers knew it w as a false report. See id., Doc. 24

at 1. In its dismissal order, it appears the district court reinterpreted the claim as

one against the M CPD, dropping Chief M aughn. See id., Doc. 31 at 2 n.3

(explaining that the complaint referred to the M CPD , not Chief M aughn, and that

the M CPD had filed the motion to dismiss). Despite M r. Johnson’s attempts to

identify the unnamed officers and the district court’s recognition that he accused

unnamed M CPD officers of false arrest, the district court construed this claim as

one against only the M CPD . By not construing this claim also as one against the

unnamed officers, the district court erred.




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      The M CPD contends that even if the false arrest claim is construed as a

claim against the one officer M r. Johnson refers to in his appellate brief, whom

the M CPD identifies as Ken Yurgelon, the claim fails because M r. Johnson has

alleged no facts showing that there was a lack of probable cause for his

warrantless arrest. Although we may affirm a district court’s judgment on any

basis supported by the record provided that the parties have had an adequate

chance to respond, Ross v. United States M arshal, 168 F.3d 1190, 1194 n.2

(10th Cir. 1999), we decline to do so here. The M CPD is not asking us to affirm

a judgment against it on other grounds but to affirm a judgment the district court

did not enter, one against Officer Yurgelon. W hether or not M r. Johnson has

stated a claim against Officer Yurgelon or any other M CPD officers is better left

to the district court’s consideration upon a proper motion filed by the appropriate

defendant(s). Accordingly, we remand for further proceedings on M r. Johnson’s

claim of false arrest against the appropriate M CPD officers. W e express no

opinion on the merits of this claim. On remand, M r. Johnson should be given an

appropriate opportunity to amend his complaint to name the proper defendants.

See Farrell v. J.E. Ham ilton Corr. Ctr., 12 F. App’x 788, 792 (10th Cir. 2001)

(unpublished) 1 (quoting Dayse v. Schuldt, 894 F.2d 170, 174 (5th Cir. 1990), for



1
       Under 10th Cir. R. 36.3(B), we cite an unpublished decision only if it has
persuasive value with respect to a material issue that has not been addressed by us
in a published opinion and it assists in our disposition. Both requirements are met
with regard to this case.

                                         -6-
the proposition that, “[w]hen a pro se plaintiff’s suit raises a constitutional claim,

but he has inadvertently sued the wrong parties, he should [be] given leave to

amend to sue the appropriate party or parties”).

      B. Sheriff K ennard’s motion to dismiss

      The district court dismissed the claim against Sheriff K ennard because

M r. Johnson failed to allege that he personally participated in or directed the

violation of M r. Johnson’s constitutional rights or “‘had actual knowledge of the

violation and acquiesced it its continuance.’” R., Doc. 31 at 4 (quoting Jenkins v.

Wood, 81 F.3d 988, 995 (10th Cir. 1996)). M r. Johnson has not contested the

dismissal as to Sheriff Kennard, and we affirm that ruling without discussion.

However, M r. Johnson does state on appeal that “jail correctional officers harmed

[him].” Aplt. Opening Br. at 3 (page numbered “2”). Based on our review of the

record, we believe that the district court construed this claim too narrowly.

      The record reveals the following. In the caption of his complaint,

M r. Johnson listed one of the defendants as “Salt Lake County Jail and

offic[i]als.” R., Doc. 3 at 1. He also identified the third defendant as Sheriff

Kennard and “officers [sic] staff,” id. at 2, and claimed he was “at risk of death

by . . . jailers [sic] staff,” id. at 4. In his response to the m otion for a more

definite statement, he alleged that the “jail staff . . . harmed me,” id., Doc. 21

at 4, and it appears he attempted to identify one of the members of the jail staff

directly involved in the alleged constitutional deprivation, although the name is

                                           -7-
illegible, see id. at 2. As the district court noted in its dismissal order,

M r. Johnson’s response to the motion to dismiss contained “numerous allegations

against unidentified jail officials,” including that they used pepper spray and

physical force on him, unfairly punished him, denied him telephone access to a

lawyer, denied him access to a bail bondsman, limited his showers, and confined

him with someone in jail for murder. Id., Doc. 31 at 3 (emphasis added).

M r. Johnson also stated that he can prove he was unjustly punished by the

sheriff’s deputies on more than one occasion. See id., Doc. 25 at 3.

      The district court implicitly treated M r. Johnson’s response to Sheriff

Kennard’s motion to dismiss in part as an amendment to the complaint, adding

new allegations. Those allegations suggest potential constitutional violations that

are different than or in addition to the unlawful detention or false imprisonment

claims identified in the district court’s original characterization of this claim and

that are directed at defendants other than Sheriff Kennard, namely, the

unidentified jail officials. Compare id., Doc. 31 at 3 (considering new

allegations) with id., Doc. 8 at 2 (construing complaint). However, the district

court did not construe the new allegations as stating a claim against the

unidentified jail officials but only as a claim against Sheriff Kennard. Under the

circumstances, this was in error. On remand, M r. Johnson should be given an

appropriate opportunity to amend his complaint to name as defendants to this

claim the particular jail officials he believes violated his rights. See Farrell,

                                           -8-
12 F. App’x at 792 (quoting Dayse, 894 F.2d at 174). W e express no opinion on

the merits of this claim.

      C. Additional matters

      Three other matters require our attention. First, M r. Johnson expresses

concern that the district court may not have received all of the letters he sent or

filed. However, he has not attached copies of those letters or otherwise described

them so that the record can be checked to evaluate his concern. He may explore

this issue with the district court, if necessary.

      Second, the clerk of this court received a letter and videotape from

M r. Johnson and construed the submission as a motion to supplement the record.

According to Sheriff Kennard’s opposition to the motion, M r. Johnson did not

serve a copy of the videotape on him, but Sheriff Kennard correctly hypothesized

that the videotape depicts an incident that occurred when M r. Johnson was booked

into the SLCJ on November 8, 2005, two months after he filed his complaint in

this case. It does not appear that M r. Johnson filed a motion to supplement his

complaint in the district court to include the incident depicted on the tape or

otherwise presented the tape to the district court for consideration. The

videotape, therefore, is irrelevant to his claims on appeal. W e therefore deny the

motion to supplement the record.

      Finally, in his appellate brief, M r. Johnson requests this court to give him

“the rights to a law [y]er.” A plt. Opening Br. at 5 (page numbered “4”). W e note

                                           -9-
that M r. Johnson, as a civil litigant, has no Sixth Amendment right to counsel.

Beaudry v. C orr. C orp. of Am ., 331 F.3d 1164, 1169 (10th Cir. 2003) (per

curiam). Rather, a court has discretion to request an attorney to represent a

litigant w ho is proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(1). The

district court denied M r. Johnson’s motion for appointment of counsel, finding

that appointment of counsel was not necessary “at this time” because it was not

yet clear that M r. Johnson had “asserted a colorable claim.” R., Doc. 7 at 2. In

view of the provisional nature of the district court’s denial and the fact that we

are remanding this case, we deny M r. Johnson’s request. M r. Johnson may file a

new motion for appointment of counsel in the district court or a motion requesting

the district court to reconsider his earlier motion if the court does not do so sua

sponte.

                                   III. Conclusion

      The judgment of the district court is AFFIRM ED IN PA RT as to the

dismissal of the claims against Sheriff Kennard and the M CPD and REV ERSED

IN PA RT as to the dismissal of the complaint, and the case is REM ANDED for

further proceedings consistent with this opinion. Appellant’s motion to

supplement the record and his request for appointment of counsel are denied.




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