Gilliland v. Eason et al

Filing 7

ORDER: Plaintiff's Complaint (#2 ) is DISMISSED for failure to state a claim. Should Plaintiff wish to continue with this case, he must file an amended complaint within 30 days that: (1) cures the deficiencies with his prior Complaint; (2) names all Defendants in the caption; (3) clearly, legibly, and concisely describes how each named Defendant acted under color of state law and personally deprived him of a federal right; (4) does not incorporate any prior document by reference; and (5) is on the form provided by the Court. Plaintiff's failure to do so will result in the dismissal of this case with prejudice. Signed on 05/09/2022 by Judge Michael W. Mosman. (Deposited in outgoing mail to pro se party on 05/09/2022 with Prisoner Pro Se Civil Rights Complaint form.) (bd)

Case 6:22-cv-00496-MO

Document 7

Filed 05/09/22

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBERT R. GILLIBRAND,

Case No. 6:22-cv-00496-MO

Plaintiff,

ORDER TO DISMISS

v.
DEPUTY EASON, et al.,
Defendants.
MOSMAN, District Judge.
Plaintiff,

incarcerated

at

the

Linn

County

Jail,

brings

this civil rights action pursuant to 42 U.S.C. § 1983. In a
separate Order, the Court granted Plaintiff leave to proceed in
forma

pauperis.

Plaintiff's

However,

Complaint

is

for

the

summarily

reasons

set

dismissed.

forth

below,

28

U.S.C.

See

§ 1915(e)(2).
BACKGROUND
Plaintiff has filed a somewhat rambling Complaint which is
not entirely legible in which he alleges that various public and
private

individuals

subjected

1 - ORDER TO DISMISS

him

to

cruel

and

unusual

Case 6:22-cv-00496-MO

punishment
transport

associated
from

the

Document 7

with

Linn

Filed 05/09/22

what

County

appears
Jail

to

to
the

Page 2 of 7

be

a

medical

Albany

General

Hospital in January 2022. Among his claims, Plaintiff appears to
allege that the transport van was too cold, the hospital was too
cold,

the

officers

used

excessive

force

getting

him

to

the

hospital and while he was at the hospital, the medical personnel
at a hospital in Linn County “forced” an intravenous needle into
his

arm,

and

hospital

employees

“raped”

him

when

they

catheterized him. He also claims to have suffered various civil
rights violations while incarcerated at the Linn County Jail. He
seeks approximately $7,000,000 in damages as well as injunctive
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

relief

may

be

granted.

28

U.S.C.

§§

1915(e)(2)(B)

and

1915A(b). In order to state a claim, Plaintiff's Complaint must
contain sufficient factual matter which, when accepted as true,
gives rise to a plausible inference that Defendants violated his
constitutional

rights.

Ashcroft

2 - ORDER TO DISMISS

v.

Iqbal,

556

U.S.

662,

678

Case 6:22-cv-00496-MO

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(2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556-57
(2007).

"Threadbare

action,

supported

recitals
by

mere

of

the

elements

conclusory

of

a

cause

statements,

of

do

not

suffice." Iqbal, 556 U.S. at 678.
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. Ortez v.
Washington County, 88 F.3d 804, 806 (9th Cir. 1996); Cervantes
v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993). Because
Plaintiff

is

proceeding

pro

se,

the

Court

construes

his

pleadings liberally and affords him the benefit of any doubt.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Ortez, 88 F.3d at
806.
DISCUSSION
As an initial matter, “Pleadings and other documents must
be typewritten, neatly printed, or otherwise legibly reproduced,
using blue or black ink.” LR 10-1(a). In reviewing plaintiff's
Complaint, the Court finds certain portions of the handwritten
pleading to not be sufficiently legible in violation of Local
Rule 10-1(a).
In

addition,

Plaintiff’s

Complaint

does

not

contain

a

short, plain statement of his claims. Pursuant to Fed. R. Civ.
3 - ORDER TO DISMISS

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P. 8(a), a complaint shall include "a short and plain statement
of the claim showing that the pleader is entitled to relief."
"Each

averment

of

a

pleading

shall

be

simple,

concise

and

direct." Fed. R. Civ. P. 8(e). If the factual elements of a
cause of action are scattered throughout the complaint but are
not organized into a "short and plain statement of the claim,"
dismissal for failure to satisfy Rule 8(a) is proper. Sparling
v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see
also Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 674
(9th

Cir.

1981)

(district

court

may

dismiss

an

action

with

prejudice due to a litigant's failure to comply with Rule 8(a)
if meaningful, less drastic sanctions have been explored). The
requirement that a pleading be "simple, concise, and direct,"
applies

to

good

claims

as

well

as

bad,

and

is

a

basis

for

dismissal independent of Rule 12(b)(6). McHenry v. Renne, 84
F.3d 1172, 1179 (9th Cir. 1996). Where Plaintiff has not clearly
and concisely set out his claims, it is difficult to ascertain
the precise nature of the claims he is attempting to bring and
to attribute particular conduct to each named Defendant. 1
It is also difficult to discern which named Defendant is employed by which
particular agency. The Court will attempt to assist pro se plaintiffs with
service but, to do so, it must be clear which particular Defendant is
employed by which municipality/agency.

1

4 - ORDER TO DISMISS

Case 6:22-cv-00496-MO

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It is also well established that a plaintiff wishing to
bring

a

cause

demonstrate

of

action

compliance

pursuant

with

the

to

42

U.S.C.

following

§

1983

factors:

must

(1)

a

violation of rights protected by the Constitution or created by
federal statute; (2) proximately caused; (3) by conduct of a
person; (4) acting under color of state law. Crumpton v. Gates,
947 F.2d 1418, 1420 (9th Cir. 1991). A plaintiff "must plead
that each . . . defendant, through the official's own individual
actions, has violated the Constitution."

Iqbal, 556 U.S. at

676; see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989) ("Liability under section 1983 arises only upon a showing
of

personal

participation

by

the

defendant"

in

the

alleged

suit

against

constitutional deprivation).
In

this

case,

Plaintiff

appears

to

bring

private entities and private individuals (such as the Albany
General Hospital and its staff) who are not state actors. He
also might wish to bring suit against the Linn County Sheriff on
a respondeat superior theory of liability, as it is not clear
from his Complaint how she personally participated in any of the
deprivations he alleges. To the extent Plaintiff is attempting
to

bring

this

suit

against

the

Sheriff

under

a

respondeat

superior theory of liability, he may not do so. Monell v. New
5 - ORDER TO DISMISS

Case 6:22-cv-00496-MO

York

City

Dep't.

of

Document 7

Social

Filed 05/09/22

Services,

436

Page 6 of 7

U.S.

658,

691-94

(1978); Taylor, 880 F.2d at 1045.
Moreover, various portions of Plaintiff’s Complaint fail to
describe how each named Defendant was individually responsible
for the actions he describes. For example, Plaintiff alleges
that unidentified “and deputies would open tray slot and drop
sack lunch on floor for approximately 3 days” and that “heat was
turned down due to Covid and middle of winter months w/only 1
blanket.” Complaint (#2), p. 6. This fails to identify how a
particular named Defendant violated a federally-protected right.
For all of these reasons, Plaintiff’s Complaint is dismissed for
failure to state a claim.
CONCLUSION
Based

on

the

foregoing,

IT

IS

ORDERED

that

Plaintiff's

Complaint (#2) is DISMISSED for failure to state a claim. Should
Plaintiff
amended

wish

to

complaint

continue
within

with
30

this
days

case,
that:

he

must

(1)

file

cures

an
the

deficiencies with his prior Complaint; (2) names all Defendants
in the caption; (3) clearly, legibly, and concisely describes
how each named Defendant acted under color of state law and
personally

deprived

him

of

a

federal

right;

(4)

does

not

incorporate any prior document by reference; and (5) is on the
6 - ORDER TO DISMISS

Case 6:22-cv-00496-MO

Document 7

Filed 05/09/22

Page 7 of 7

form provided by the Court. Plaintiff’s failure to do so will
result in the dismissal of this case with prejudice.
The Clerk of Court is directed to send Plaintiff a civil
rights form for his use.
IT IS SO ORDERED.
5/9/2022
DATE

7 - ORDER TO DISMISS

Michael W. Mosman
United States District Judge