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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERT SHORTY AVERY,
Plaintiff,

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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

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Centers - California, Inc., DBA Clearlake Dialysis (“Clearlake Dialysis”) (originally sued as

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“Davita Diallysis Center et. al.”) and John Fuch for a “deprivation of rights” related to a treatment

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he received. Dkt. No. 1. The complaint is dismissed with leave to amend. 28 U.S.C.

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§ 1915(e)(2)(B)(i) and (ii).
DISCUSSION

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Even liberally construed, the complaint does not provide “a short and plain statement of

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the claim showing that the pleader is entitled to relief” as required by Rule 8(a)(2) of the Federal

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Rules of Civil Procedure. The handwritten complaint is a discursive narrative about something

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that appears to have happened in November 2016 between Avery and a nurse, a technician, and

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another patient at the Clearlake Dialysis Center. It is not possible to find in the complaint any

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facts explaining why Avery is suing or a clear statement of his legal claims. Avery filed a late

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opposition to the motion to dismiss that mentions 42 U.S.C. § 1983 and possibly the ADA, but

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even if those untimely statements are considered, they do not fix the pleading deficiencies in the

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complaint. Dkt. No. 15 at 2-5.

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Consequently, the complaint is dismissed with leave to amend. Avery may file an

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amended complaint no later than October 20, 2017. Defendants need not move to dismiss the

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amended complaint. The Court will review it on its own. Avery is encouraged to consult with the

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Federal Pro Bono Project’s Legal Help Center in either of the Oakland or San Francisco federal

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courthouses for assistance. The San Francisco Legal Help Center office is located in Room 2796

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on the 15th floor at 450 Golden Gate Avenue, San Francisco, CA 94102. The Oakland office is

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located in Room 470-S on the 4th floor at 1301 Clay Street, Oakland, CA 94612. Appointments

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can be made by calling [phone] or signing up in the appointment book located outside.

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IT IS SO ORDERED.
Dated: September 20, 2017
_____________________________________
JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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