Purdy et al v. Hubbard et al

Filing 12

MEMORANDUM AND ORDER that Plaintiff shall have until October 1, 2012, to amend his Complaint to clearly state a claim upon which relief may be granted against Defendants, in accordance with this Memorandum and Order. The Clerk of the court is direct ed to set a pro se case managementdeadline in this case using the following text: Check for amended complaint on October 1, 2012, and dismiss if none filed. All other pending motions are denied. Ordered by Judge John M. Gerrard. (Copy mailed to pro se party)(ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ANTHONY P. PURDY, and
LASHAWN WILLIAMS,
Plaintiffs,
v.
HUBBARD, et al.,
Defendants.

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8:12CV192

MEMORANDUM
AND ORDER

Plaintiff filed his Complaint in this matter on June 1, 2012. (Filing No. 1.)
Plaintiff has previously been given leave to proceed in forma pauperis (filing no. 9)
and paid the initial partial filing fee on August 7, 2012. (Filing No. 9; see also
Docket Sheet.) The court now conducts an initial review of the Complaint to
determine whether summary dismissal is appropriate under 28 U.S.C. §§ 1915(e) and
1915A.
I.

SUMMARY OF COMPLAINT

Plaintiff filed his Complaint on June 1, 2012, against 15 individual Defendants
and “Medical Staff and nurses.” (Filing No. 1 at CM/ECF p. 1.) Plaintiff’s
allegations are almost completely illegible. Plaintiff mentions “money being taken
and used by another” inmate, a “staff assault” he allegedly engaged in, “cleaning
supplies” he did not receive, staff “refus[ing] to give [him] the ice back,” a “flood”
in his cell, a problem with his hand, and other unrelated allegations. (Id. at CM/ECF
pp. 2-7.) However, the Complaint consists of, at best, nonsensical and illegible
statements that the court simply cannot decipher. Additionally, Plaintiff does not
request any relief from the court. Plaintiff submitted a separate Motion to the court
requesting emergency relief relating to “freedom of religion” because Defendants did
not provide him with the appropriate meals during Ramadan. (Filing No. 11.)

However, as best as the court can tell, the Complaint does not mention religion.
(Filing No. 1.)
II.

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW

The court is required to review prisoner and in forma pauperis complaints
seeking relief against a governmental entity or an officer or employee of a
governmental entity to determine whether summary dismissal is appropriate. See 28
U.S.C. §§ 1915(e) and 1915A. 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); 28 U.S.C. § 1915A.
A pro se plaintiff must set forth enough factual allegations to “nudge[] their
claims across the line from conceivable to plausible,” or “their complaint must be
dismissed” for failing to state a claim upon which relief can be granted. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569-70 (2007); see also Ashcroft v. Iqbal, 129 S. Ct.
1937, 1950 (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).
However, a pro se plaintiff’s allegations must be construed liberally. Burke v. North
Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
III.

DISCUSSION OF CLAIMS

The court has carefully reviewed the Complaint. As set forth above, Plaintiff’s
allegations are nearly impossible to decipher. The allegations which the court can
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decipher do not nudge any claim across the line from conceivable to plausible.
Plaintiff does not set forth any specific actions taken by Defendants which violate any
constitutional right or support a claim under 42 U.S.C. § 1983. Keeper v. King, 130
F.3d 1309, 1314 (8th Cir. 1997). In short, Plaintiff does not allege that Defendants
deprived him of a right secured by the Constitution or laws of the United States or
that the alleged deprivation was committed under “color of state law.” West, 487 U.S.
at 48; Buckley, 997 F.2d at 495. Even with the most liberal construction, Plaintiff’s
Complaint does not include “sufficient facts to support the claims advanced,” and is,
at best, frivolous. Stringer v. St. James R-1 School Dist., 446 F.3d 799, 802 (8th Cir.
2006).
However, on its own motion, the court will permit Plaintiff 30 days in which
to amend his Complaint to sufficiently allege a claim against Defendants. Any
amended complaint shall restate the allegations of Plaintiff’s prior Complaint (filing
no. 1), and any new allegations. Failure to consolidate all claims into one document
will result in the abandonment of claims. If Plaintiff fails to file a sufficient amended
complaint in accordance with this Memorandum and Order, this matter will be
dismissed without prejudice for failure to state a claim upon which relief may be
granted.
IT IS THEREFORE ORDERED that:
1.
Plaintiff shall have until October 1, 2012, to amend his Complaint to
clearly state a claim upon which relief may be granted against Defendants, in
accordance with this Memorandum and Order. If Plaintiff fails to file a sufficient
amended complaint, Plaintiff’s Complaint will be dismissed without further notice for
failure to state a claim upon which relief may be granted.
2.
In the event that Plaintiff files an amended complaint, Plaintiff shall
restate the allegations of the current Complaint (filing no. 1), and any new allegations.
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Failure to consolidate all claims into one document may result in the abandonment
of claims.
3.
The Clerk of the court is directed to set a pro se case management
deadline in this case using the following text: Check for amended complaint on
October 1, 2012, and dismiss if none filed.
4.
Plaintiff shall keep the court informed of his current address at all times
while this case is pending. Failure to do so may result in dismissal without
further notice.
5.

All other pending motions are denied.

DATED this 31st day of August, 2012.
BY THE COURT:
s/ John M. Gerrard
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
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