TILLMAN v. RAHL et al

Filing 31

REPORT AND RECOMMENDATION re 28 Amended Complaint filed by CORNELIUS TILLMAN : It is recommended that Plaintiffs amended complaint, doc. 28 , be DISMISSED for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2), and that the order adopting this report and recommendation direct the clerk of court to note on the docket that this cause was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Signed by MAGISTRATE JUDGE ALLAN KORNBLUM on 5/12/2009. Internal deadline for referral to district judge if objections are not filed earlier: 6/9/2009. (kdm)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION

CORNELIUS TILLMAN, Plaintiff, vs. RON RAHL, et al, Defendants. / REPORT AND RECOMMENDATION Plaintiff brings this cause pursuant to 42 U.S.C. §1983 alleging that Defendants were indifferent to his medical needs. (Doc. 28). He was directed by previous order to provide more facts about what he alleges each defendant did or did not do with regard to his medical care, (doc. 24), but his amended pleading refers back to the previous complaint for details. A court may dismiss a case proceeding in forma pauperis if the complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A. Pro se complaints are to be held to a less stringent standard than those drafted by an attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986), citing Haines v. Kerner, 404 U.S. 519, 520-1, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972). However, a plaintiff is still required to "set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable CASE NO. 1:06CV132-MP/AK

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legal theory." Worst v. Hart, 1995 WL 431357, *2 (N.D. Fla. 1995). It cannot be assumed that a Plaintiff will prove facts which have not been alleged. Quality Foods de Centro America, 711 F.2d at 995, citing Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 103 S. Ct. 897, 902, 74 L. Ed. 2d 723 (1983). Hence, even though the pleading standard for a pro se complaint is quite liberal, "bald assertions and conclusions of law will not suffice." Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). Additionally, the court's duty to construe a plaintiff's complaint liberally is not the equivalent of a duty to rewrite it. Peterson v. Atlanta Housing Auth., 998 F.2d 904, 912 (11th Cir. 1993). The court cannot discern from the three pleadings filed in this cause what Plaintiff's allegations are beyond that he contends something more should have been done about his toe by persons at the Alachua County Jail. In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff's amended complaint, doc. 28, be DISMISSED for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2), and that the order adopting this report and recommendation direct the clerk of court to note on the docket that this cause was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). IN CHAMBERS at Gainesville, Florida, this 12th day of May, 2009.

s/ A. KORNBLUM ALLAN KORNBLUM UNITED STATES MAGISTRATE JUDGE

No. 1:06cv132-mp/ak

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NOTICE TO THE PARTIES A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.

No. 1:06cv132-mp/ak