Anderson v. Amsberry

Filing 5

ORDER TO DISMISS: Based on the foregoing, IT IS ORDERED that plaintiff's Complaint 2 is DISMISSED for failure to state a claim. Should plaintiff wish to proceed with this action, he must file an amended complaint curing the deficiencies noted above within 30 days of the date of this Order. Plaintiff is advised that his amended complaint may not incorporate any part of the original pleading by reference, and that failure to file an amended complaint shall result in the dismissal of this proceeding, with prejudice. Signed on 3/7/2017 by Judge Michael H. Simon. (copy mailed to plaintiff) (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JACOB NATE ANDERSEN,
Case No. 2:17-cv-00133-SI
Plaintiff,
ORDER TO DISMISS

v.
MS. BRIGITTE AMSBERRY,
Defendant.
SIMON, District Judge.
Plaintiff,
Institution,

u.s.c.

§

an

brings

1983.

inmate
this

In

a

at

civil

separate

the

Two

Rivers

rights

action

Order,

the

plaintiff leave to proceed in forma pauperis.
reasons set forth below,

Correctional

pursuant

court

to

has

granted

However,

for the

plaintiff's Complaint is dismissed for

failure to state a claim upon which relief may be granted.
28 U.S.C.

§

1915 (e) (2).

Ill
1 - ORDER TO DISMISS

42

See

BACKGROUND

Plaintiff

brings

this

Superintendent Amsberry.
prison

employees

retaliated

and

(who

He

are

that

against

a

principally

not

discriminated

and

orientation,

case

alleges

currently
against

Amsberry

single

defendant,

that

various

named

him

as

defendants)

due

to

his

oversees

these

sexual

individuals.

Plaintiff seeks injunctive and monetary relief.
STANDARDS

Pursuant to 28 U.S.C.

1915A(a),

§

the court is required to

screen prisoner complaints seeking relief against a governmental
entity, officer, or employee and must dismiss a complaint if the
action is frivolous,

malicious,

or fails to state a claim upon

which

granted.

28

relief may be

1915A (b) .

U.S.C.

rise

to

a

plausible

inference

plaintiff's constitutional rights.

of

(2007).

action,

suffice."

and

when accepted as true,

that

defendants

Ashcroft v.

1937, 1949 (2009); Bell Atlantic Corp. v.
556-57

1915(e) (2) (B)

In order to state a claim, plaintiff's complaint must

contain sufficient factual matter which,
gives

§§

Iqbal,

Twombly,

violated
129 S.Ct.

550 U.S. 554,

"Threadbare recitals of the elements of a cause

supported

by

mere

conclusory

Iqbal, 129 S.Ct. at 1949.

2 - ORDER TO DISMISS

statements,

do

not

Dismissal

for

failure

to

state

a

claim

is

proper

if

it

appears beyond doubt that plaintiff can prove no set of facts in
support of his claims that would entitle him to relief.
v.

Washington

Cervantes

v.

City

Because

1993).

88

County,
of

F.3d

San

804,
5

Diego,

plaintiff

is

806

F.3d

(9th

1273,

proceeding

Cir.

1274

pro

Ortez

se,

1996);

(9th
the

Cir.
court

construes his pleadings liberally and affords him the benefit of
any doubt.

Erickson

v.

551 U.S.

Pardus,

89,

94

(2007);

Ortez,

88 F.3d at 806.
DISCUSSION

As

an

initial

matter,

plaintiff

has

properly

utilized

a

The form pleading

standard form pleading to initiate this case.

asks plaintiff to "Enter full name of ALL defendant(s)" in the
caption

of

his

appropriate
(requiring

Complaint

procedural
that

all

so

that

rules.

defendants

the

See

be

pleading

Fed.
named

R.
in

complies

Civ.
the

P.

with

lO(a)

caption

of

a

complaint). The only defendant plaintiff names is Superintendent
Amsberry.

Although

Complaint

that

additional

it

is

evident

plaintiff wishes

individuals,

because

from

to bring this
those

included in the caption of the Complaint,
named as defendants.
3 - ORDER TO DISMISS

the

contents
lawsuit

individuals

of

his

against
are

not

they are not properly

In addition,
pursuant
the

to

42

following

a plaintiff wishing to bring a cause of action

U.S.C.

1983 must

§

factors:

( 1)

a

demonstrate

violation of

the Constitution or created by federal
caused
state

( 3)

by

basis

In
for

this
any

challenges
Rules.

of

Crumpton v.

law.

1991).

conduct

case,

of

person

Gates,

947

plaintiff

his

primarily

a

claims,
predicated

In this respect,

acting

F.2d

does

but

rights

statute

( 4)

1418,

not

protected by

(2)

proximately

under

color

1420

identify

instead

upon

compliance with

(9th Cir.
a

appears

Oregon's

of

federal
to

raise

Administrative

plaintiff fails to state a claim upon

which relief may be granted.
Finally,
Amsberry

is

plaintiff's lone allegation against Superintendent
that

she

is

"allowing"

her

prison

personnel

to

violate their codes of conduct and ethics because they operate
unprofessionally
plaintiff

"must

official's

and
plead

own

Constitution."

abuse
that

their
each

individual

Iqbal,

positions

556 U.S.

of

authority.

defendant,
actions,
at 676.

has

through

violated

A
the
the

A supervisor is liable

for the constitutional violation of his or her employee if the
supervisor participated in or directed the violations,
of the violations and failed to act
880

F.2d

at

1045.

4 - ORDER TO DISMISS

Plaintiff

fails

to prevent
to

allege

or

knew

them.

Taylor,

that

Amsberry

specifically knew of,
violation.

Instead,

participated in,
he

appears

to

or directed any federal

allege

that

Amsberry

is

subject to liability due to her supervisory role at his prison.
Because there is no respondeat superior liability under
Monell v. New York City Dep't. of Social Services,

1983,

§

436 U.S. 658,

691-94 (1978), he fails to state a claim against Amsberry.
CONCLUSION

Based
Complaint

on

the

(#2)

foregoing,

IT

is

DISMISSED

IS

for

ORDERED

failure

to

that

plaintiff's

state

Should plaintiff wish to proceed with this action,

a

claim.

he must file

an amended complaint curing the deficiencies noted above within
30 days of the date of this Order.
his

amended

complaint

original

pleading

amended

complaint

by

may

not

reference,

shall

result

Plaintiff is advised that

incorporate
and

that

in

the

any

failure

part
to

dismissal

of
file
of

proceeding, with prejudice.
IT IS SO ORDERED.
DATED this

1- ti-day
United States District Judge

5 - ORDER TO DISMISS

the
an

this