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).
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?