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.
ยง
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
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