Roberts v. Trotta et al

Filing 16

MEMORANDUM AND ORDER that plaintiff shall have 30 days from the date of this Memorandum and Order to file an amended complaint. The clerk's office is directed to set a pro se case management deadline in this matter: January 3, 2014: Check for am ended complaint. Plaintiff's Motion to Amend Complaint 6 is denied as moot. As set forth above, Plaintiff must file an amended complaint in accordance with this Memorandum and Order. Ordered by Judge Joseph F. Bataillon. (Copy mailed to pro se party) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NICK ROBERTS,
Plaintiff,
v.
TROTTA, et al.,
Defendants.

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4:13CV3154

MEMORANDUM
AND ORDER

Plaintiff Nick Roberts (“Plaintiff”) filed his Complaint in this matter on August
26, 2013. (Filing No. 1.) The court has given Plaintiff leave to proceed in forma
pauperis. The court now conducts an initial review of Plaintiff’s Complaint to
determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e)(2)
and 1915A. In reviewing Plaintiff’s Complaint, the court also considers a Motion to
Amend Complaint filed on September 4, 2013 (Filing No. 6), and two “Supplements”
filed on September 27 and November 21, 2013. (Filing Nos. 8 and 15). See NECivR
15.1(b) (stating that, in pro se cases, the court may consider an amended pleading as
supplemental to the original pleading).
I. SUMMARY OF COMPLAINT
Plaintiff filed this action pro se. He is incarcerated at the Nebraska State
Prison in Lincoln, Nebraska. (Filing No. 1 at CM/ECF p. 1.) The court cannot
decipher from Plaintiff’s numerous filings who he intends to name as the defendants
in this action. Plaintiff named the following defendants in the caption of his
Complaint: Trotta, Mausbach, Griffith, Holsing, Maintenance, D/E Health Inspector,
Dennis Bakewell, Dr. Machado, Dr. Hustad, Dr. Furgusion, and Ombsbudsman. (Id.)
However, in a subsequently filed Motion to Amend Complaint, he lists only Robert
Houston and Trotta as the defendants. (Filing No. 6 at CM/ECF p. 1.) Later, in a
subsequently filed “Supplement” to his Complaint, he states that he is suing the
“D.E.C. Warden and the Department of Corrections,” and not Trotta. (Filing No. 8

at CM/ECF p. 22.) As set forth below, the court will require Plaintiff to file an
amended complaint that clearly identifies who he intends to name as the defendants
in this action.
Condensed and summarized, Plaintiff alleges that he fell after sitting on a
broken chair at the Diagnostic and Evaluation Center. (Filing No. 1 at CM/ECF p.
4.) He seriously injured his finger and back as a result of the fall. (Id.) Plaintiff
alleges that prison officials were negligent in failing to repair the chair prior to his
fall, as they were on notice that the chair was broken. (Id.) It is unclear from
Plaintiff’s Complaint and subsequent filings which prison officials were on notice
that the chair was broken, and whether any of them are named as defendants in this
matter. Plaintiff also alleges in his Complaint that Trotta, Griffith, and Doctors
Hustad, Machado, and Furgusion failed to provide him with proper medical treatment
following his fall. (Id. at CM/ECF pp. 7-12.) However, in light of statements made
in Plaintiff’s Motion to Amend and Supplements, it is unclear whether Plaintiff
intends to prosecute this matter against any of these individuals.
As relief, Plaintiff seeks $250,000, for “loss of use of finger, numbness in back
and legs,” and “constant pain.” (Id. at CM/ECF p. 10.)
II. APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The court is required to review in forma pauperis complaints to determine
whether summary dismissal is appropriate. See 28 U.S.C. § 1915(e)(2). The court
must dismiss a complaint or any portion thereof that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be granted, or that seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B).
Pro se plaintiffs must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
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dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”). Regardless of whether a plaintiff is represented
or is appearing pro se, the plaintiff’s complaint must allege specific facts sufficient
to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
III. DISCUSSION OF CLAIMS
Federal Rule of Civil Procedure 8 requires that every complaint contain “a
short and plain statement of the claim showing that the pleader is entitled to relief”
and that “each allegation . . . be simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2),
(d)(1). A complaint must state enough to “‘give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S.
89, 93 (2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
A pro se plaintiff’s allegations should be construed liberally. Burke v. North Dakota
Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002). However, pro se
litigants must comply with the Federal Rules of Civil Procedure. See Burgs v. Sissel,
745 F.2d 526, 528 (8th Cir. 1984) (“[P]ro se litigants are not excused from failing to
comply with substantive and procedural law.”).
As set forth above, the court cannot decipher from Plaintiff’s Complaint and
subsequent filings who the defendants are or what allegations and legal theories relate
to each defendant. On the court’s own motion, Plaintiff will have 30 days from the
date of this Memorandum and Order to file an amended complaint that clearly (1)
identifies each defendant; (2) specifies the capacity in which the defendant is sued;
and (3) sets forth a short and plain statement of the claims against the defendant.
Plaintiff should be mindful to explain what each defendant did to him, when
the defendant did it, how the defendant’s actions have harmed him, and what specific
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legal right Plaintiff believes the defendant violated. If Plaintiff fails to file an
amended complaint in accordance with this Memorandum and Order, this matter will
be dismissed without prejudice and without further notice.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have 30 days from the date of this Memorandum and Order
to file an amended complaint that clearly identifies each defendant, specifies the
capacity in which the defendant is sued, and sets forth a short and plain statement of
the claims against the defendant. This matter will be dismissed without prejudice and
without further notice if Plaintiff fails to file an amended complaint in accordance
with this Memorandum and Order.
2.
The clerk’s office is directed to set a pro se case management deadline
in this matter: January 3, 2014: Check for amended complaint.
3.
Plaintiff’s Motion to Amend Complaint (Filing No. 6) is denied as moot.
As set forth above, Plaintiff must file an amended complaint in accordance with this
Memorandum and Order.
DATED this 2nd day of December, 2013.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

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