Charlton v. Yepez et al
ORDER: Defendants' Motion for partial dismissal (#12) is allowed. Plaintiff is allowed 30 days from the date of this order to file an amended complaint that complies with the pleading requirements explained in this order. Plaintiff is advised that if he fails to file an amended complaint the dismissal of the claims discussed above will be considered to have been dismissed with prejudice. Signed on 12/29/2016 by Judge Michael J. McShane. (copy mailed to plaintiff) (kms)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
Bobby Shane Charlton,
F. Yepez, et al.,
Mcshane, District Judge.
Department of Corrections filed a complaint under 42 U.S.C.
1983 alleging Eighth Amendment excessive force claims arising
out of an incident on December 23,
altercation and has
been denied proper treatment
Defendants now move for partial dismissal of plaintiff's
complaint (#12) as follows:
1 - ORDER
Defendants move to dismiss plaintiff's state law claims
as barred by the Eleventh Amendment.
Plaintiff responds that his allegations referencing the
"evidence supporting" his Constitutional claims and are not
separate causes of action.
allegations is allowed.
Defendants move to dismiss plaintiff's Eighth Amendment
claims arising out of his general mental health treatment and
IMU housing placement on the ground that plaintiff has not
alleged those claims against any specific defendant.
In order to state a claim against a named defendant,
plaintiff must allege specific facts about that defendant and
identify how that defendant's conduct violated his rights.
factual allegations against a named defendant will entitle
that defendant to have the complaint dismissed as to him,
pursuant to Fed. R. Civ. P. 12(b).
Polk v. Montgomery County,
Blum, 528 F.Supp. 252, 262 (S.D. N.Y. 1981).
In Bell Alantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955 (2007), the Supreme Court held that the Fed. R. Civ. P.
2 - ORDER
Rule 8 pleading standard does not require "detailed factual
allegations," but it demands more than ane unadorned,
Id., at 555, 127
S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106
conclusions" or "a formulaic recitation of the elements of a
cause of action will not do."
Nor does a
complaint suffice if
assertion[s] devoid of "further factual enhancement." Id., at
557, 127 S.Ct. 1955. Ashcroft v. Igbal, 129 S.Ct. 1937, 1949
(2009) ;see also, Henry A. V. Wilden, 678 F.3d 991, 1004
(a plaintiff's "allegations in a complaint may not
simply recite the elements of a cause of action,
contain sufficient underlying facts to give fair notice and to
enable the opposing party to defend itself effectively").
Plaintiff does not attribute the violations of his Eighth
Amendment rights to any specific individual's actions.
explained above general allegations or a "formulaic recitation
of the elements of a cause of action" is insufficient to state
a claim. Therefore, defendants' motion to dismiss plaintiff's
treatment and IMU placement is allowed.
Amendment due process claim because that claim is not alleged
3 - ORDER
against any specific defendant.
For the reasons set forth above discussing plaintiff's
Eighth Amendment medical claims, defendants motion to dismiss
plaintiff's due process claims is allowed.
defendant Davis on the ground that plaintiff has not alleged
how defendant Davis caused him harm.
Plaintiff responds that his failure to allege facts that
In any event the complaint does not allege any facts
regarding defendant Davis or indicate how his conduct violated
the complaint fails state a
dismiss plaintiff's claims against Davis is allowed.
In civil rights cases involving a plaintiff proceeding
affords the plaintiff the benefit of any doubt.
974 F.2d 1050, 1055 (9th Cir. 1992); Karim-Panahi v.
Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).
Before dismissing a pro se civil rights complaint for
failure to state a claim, this court supplies the plaintiff
with a statement of the complaint's deficiencies.
974 F.2d at 1055; Karim-Panahi, 839 F.2d at 623-24; Eldridge
4 - ORDER
832 F.2d 1132,
litigant will be given leave to amend his or her complaint
unless it is absolutely clear that the deficiencies of the
complaint cannot be cured by amendment.
F.2d at 623; Noll v. Carlson,
809 F.2d 1446, 1447 (9th Cir.
In view of the liberal construction of pro se pleading
and to afford plaintiff the benefit of any doubt, I find that
it is appropriate to allow plaintiff the opportunity to cure
the pleading deficiencies of the complaint in this case.
Based on all of the foregoing,
is allowed. Plaintiff is allowed 30
days from the date of this order to file an amended complaint
that complies with the pleading requirements explained in this
is advised that if he fails
to file an
amended complaint the dismissal of the claims discussed above
will be considered to have been dismissed with prejudice.
DATED this 2~
day of December, 2016.
United States District Judge
5 - ORDER
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