Rouse v. Allbaugh et al

Filing 68

OPINION AND ORDER by District Judge James H. Payne : The Plaintiff must file a proper amended complaint which must include all claims and supporting material to be considered by the court. In addition, the amended complaint mu st be complete in itself, including exhibits which may not reference the original pleading which is due by 9/20/17. All pending motions are dismissed as moot 48 Motion to Dismiss, 58 Motion to Quash, 60 Motion for Default Judgment, 62 Motion for Default Judgment and Motion for Summary Judgment. (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

TROY RUSSELL ROUSE,

)
)
Plaintiff,
)
)
v.
)
)
JOE M. ALLBAUGH, Director )
of Dept. of Corrections, et al., )
)
Defendants. )

Case No. CIV-16-550-JHP-SPS

OPINION AND ORDER
This matter comes before the court on Defendants’ Motion to Dismiss, pursuant to
Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. The court has reviewed the
Petition and the Writ of Mandamus which were filed on November 14, 2016 in the District
Court of Pittsburg County, State of Oklahoma and removed by the defendants to this court
on December 12, 2016. (Dkt. # 2). Based upon the state court petition and the allegations
in the writ, this court assumes plaintiff is attempting to pursue alleged constitutional
violations under 42 U.S.C. § 1983.
The pleadings filed by plaintiff are deficient and are subject to dismissal, pursuant to
28 U.S.C. § 1915(e)(2)(B), in their present form. Within fourteen (14) days of the entry of
this Order, Plaintiff must file an amended complaint on the Court’s form. The amended
complaint must set forth each person he is suing under 42 U.S.C. § 1983. See Sutton v. Utah
State Sch. for the Deaf & Blind, 173 F.3d 1226, 1237 (10th Cir. 1999) (holding that “a cause

of action under § 1983 requires a deprivation of a civil right by a ‘person’ acting under color
of state law”). Plaintiff must state specifically how and when each named defendant
allegedly violated his constitutional rights. See Fed. R. Civ. P. 8(a). Plaintiff is admonished
that simply alleging that a defendant is an employee or supervisor of a state agency is
inadequate to state a claim. He must go further and state how the named defendant’s
personal participation violated his constitutional rights. The amended complaint must
include all claims and supporting material to be considered by the Court. In addition, the
amended complaint must be complete in itself, including exhibits, and may not reference or
attempt to incorporate material from the original pleadings. See Local Civil Rule 9.2(c).
Furthermore, pursuant to Local Civil Rule 5.2(a), the amended complaint must be clearly
legible.
The Court Clerk is directed to send Plaintiff the proper form for filing an amended
complaint. If Plaintiff fails to file an amended complaint by the deadline set forth in this
Order, this action shall be dismissed for failure to state a claim upon which relief may be
granted.
Additionally, all pending motions are dismissed as moot.
It is so ordered on this 6th day of September, 2017.

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