Charlton v. Yepez et al

Filing 15

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,
Plaintiff,

2:16-cv-00901-MC
ORDER

v.

F. Yepez, et al.,
Defendants.
Mcshane, District Judge.
Plaintiff,

an

inmate

in

the

custody

of

the

Oregon

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,
alleges

that

treatment

he

for

was

not

injuries

altercation and has

provided
he

2014.
with

allegedly

Plaintiff further
adequate

medical

sustained

in

the

been denied proper treatment

for

his

mental illness.
Defendants now move for partial dismissal of plaintiff's
complaint (#12) as follows:

1 - ORDER

1.)

Defendants move to dismiss plaintiff's state law claims

as barred by the Eleventh Amendment.
Plaintiff responds that his allegations referencing the
Oregon

Constitution

and

Oregon

tort

law

are

intended

as

"evidence supporting" his Constitutional claims and are not
separate causes of action.
I

construed plaintiff's

defendants

argument

and

response

the

motion

as
to

a

concession of
dismiss

those

allegations is allowed.
2.)

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.
General

allegations

are

insufficient.

The

absence

of

any

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).
548 F.

Supp.

613,

614

(D.Md.

Polk v. Montgomery County,

1982).

See also,

Morabito v.

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,
defendant-unlawfully-harmed-me accusation.

the-

Id., at 555, 127

S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106
S.Ct.

2932,

(1986)).

A pleading

that

offers

"labels

and

conclusions" or "a formulaic recitation of the elements of a
cause of action will not do."
Nor does a

1955.

550 U.S.,

complaint suffice if

at 555,

127 S.Ct.

it tenders

"naked

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
Cir. 2012)

(9th

(a plaintiff's "allegations in a complaint may not

simply recite the elements of a cause of action,

but must

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.

As

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
claims

arising

out

of

plaintiff's

general

mental

health

treatment and IMU placement is allowed.
3.

Defendants

move

to

dismiss

plaintiff's

Fourteenth

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.
4.

Defendants

move

to dismiss

plaintiff's

claims

as

to

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
support

a

claim

against

defendant

Davis

"reflects

an

inadvertent omission."
In any event the complaint does not allege any facts
regarding defendant Davis or indicate how his conduct violated
plaintiff's rights.
claim

against

Therefore,

defendant

Davis

the complaint fails state a
and

defendants'

motion

to

dismiss plaintiff's claims against Davis is allowed.
In civil rights cases involving a plaintiff proceeding

pro se,

this

court

construes

the pleadings

liberally and

affords the plaintiff the benefit of any doubt.
Smith,

McGuckin v.

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.

McGuckin,

974 F.2d at 1055; Karim-Panahi, 839 F.2d at 623-24; Eldridge

4 - ORDER

v.

Block,

832 F.2d 1132,

1136

(9th Cir.

1987).

A

pro se

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,

Karim-Panahi,

839

809 F.2d 1446, 1447 (9th Cir.

1987) .
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,
partial dismissal

(#12)

Defendants'

Motion for

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.
DATED this 2~

day of December, 2016.

\
Michael Mcshane
United States District Judge

5 - ORDER