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)

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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

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