Avery v. Davita Diallysis Center et al

Filing 23

ORDER by Judge James Donato granting 10 Motion to Dismiss; dismissing 1 Complaint. (jdlc1S, COURT STAFF) (Filed on 9/19/2017) (Additional attachment(s) added on 9/19/2017: # 1 Certificate/Proof of Service) (hdjS, COURT STAFF).

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 ROBERT SHORTY AVERY, Plaintiff, 6 7 8 9 10 Case No.16-cv-07061-JD ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND v. DAVITA DIALYSIS CENTER, et al., Re: Dkt. Nos. 1, 10 Defendants. Pro se plaintiff Robert Avery, who has been granted IFP status, has sued Renal Treatment United States District Court Northern District of California 11 Centers - California, Inc., DBA Clearlake Dialysis (“Clearlake Dialysis”) (originally sued as 12 “Davita Diallysis Center et. al.”) and John Fuch for a “deprivation of rights” related to a treatment 13 he received. Dkt. No. 1. The complaint is dismissed with leave to amend. 28 U.S.C. 14 § 1915(e)(2)(B)(i) and (ii). DISCUSSION 15 16 Even liberally construed, the complaint does not provide “a short and plain statement of 17 the claim showing that the pleader is entitled to relief” as required by Rule 8(a)(2) of the Federal 18 Rules of Civil Procedure. The handwritten complaint is a discursive narrative about something 19 that appears to have happened in November 2016 between Avery and a nurse, a technician, and 20 another patient at the Clearlake Dialysis Center. It is not possible to find in the complaint any 21 facts explaining why Avery is suing or a clear statement of his legal claims. Avery filed a late 22 opposition to the motion to dismiss that mentions 42 U.S.C. § 1983 and possibly the ADA, but 23 even if those untimely statements are considered, they do not fix the pleading deficiencies in the 24 complaint. Dkt. No. 15 at 2-5. 25 Consequently, the complaint is dismissed with leave to amend. Avery may file an 26 amended complaint no later than October 20, 2017. Defendants need not move to dismiss the 27 amended complaint. The Court will review it on its own. Avery is encouraged to consult with the 28 Federal Pro Bono Project’s Legal Help Center in either of the Oakland or San Francisco federal 1 courthouses for assistance. The San Francisco Legal Help Center office is located in Room 2796 2 on the 15th floor at 450 Golden Gate Avenue, San Francisco, CA 94102. The Oakland office is 3 located in Room 470-S on the 4th floor at 1301 Clay Street, Oakland, CA 94612. Appointments 4 can be made by calling (415) 782-8982 or signing up in the appointment book located outside. 5 6 7 8 IT IS SO ORDERED. Dated: September 20, 2017 _____________________________________ JAMES DONATO United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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