Franklin v. Frakes et al

Filing 9

MEMORANDUM AND ORDER that Plaintiff shall file an amended complaint no later than March 1, 2017. Should Plaintiff fail to do so, this action will be dismissed without further notice. The clerk of court is directed to set a case management deadline using the following text: March 1, 2017: check for amended complaint. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOSHUA G. FRANKLIN, SR.,
Plaintiff,

8:16CV470

vs.
SCOTT FRAKES, Director, et al.,

MEMORADUM
AND ORDER

Defendants.
Plaintiff filed his Complaint on October 17, 2016. (Filing No. 1.) He was
granted leave to proceed in forma pauperis. (Filing No. 7.) For the reasons that
follow, the court will require Plaintiff to file an amended complaint, or face
dismissal of this action.
DISCUSSION
The court has carefully reviewed Plaintiff’s Complaint and finds that the
Complaint fails to comply with Rule 8 of the Federal Rules of Civil Procedure.
Rule 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 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) (quotation omitted).
Although a pro se plaintiff’s allegations should be liberally construed, pro se
litigants must comply with the Federal Rules of Civil Procedure. 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”).
Plaintiff’s Complaint is forty-one pages long and names thirty-five
defendants, including “John Does 1-10.” Moreover, although he pleads specific

“legal theories” (deliberate indifference to medical needs, failure to protect, failure
to train, and retaliation) in his Complaint, it appears that Plaintiff’s primary
concern is that various defendants denied his grievances. (See Filing No. 1 at
CM/ECF pp. 6-22, 24-34.) Defendants' denial of Plaintiff’s grievances do not state
a substantive constitutional claim. See Lomholt v. Holder, 287 F.3d 683 (8th Cir.
2002). Finally, even when liberally construed, Plaintiff’s allegations suggest that
staff did respond to his complaints and fears.
Out of an abundance of caution, the court will grant Plaintiff leave to file an
amended complaint that clearly and concisely sets forth his claims for relief.
Plaintiff should make certain that his amended complaint specifies how each
named defendant personally participated in any alleged unconstitutional
conduct. Plaintiff is further advised that his amended pleading will supersede,
rather than supplement, his Complaint.
IT IS THEREFORE ORDERED that: Plaintiff shall file an amended
complaint no later than March 1, 2017. Should Plaintiff fail to do so, this action
will be dismissed without further notice. The clerk of court is directed to set a case
management deadline using the following text: March 1, 2017: check for amended
complaint.
Dated this 30th day of January, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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