Summary
dismissing causes of action with prejudice where the plaintiff was afforded multiple opportunities to address pleading deficiencies but failed to adequately do so
Summary of this case from Carbajal v. SerraOpinion
NO. CIV-08-0759-HE.
April 30, 2009
ORDER
Plaintiff Howard Bridges, Jr., appearing pro se, filed this case against a number of individuals and entities, purporting to allege claims for false arrest, defamation, false imprisonment, Fifth Amendment Due Process violations, Habeas Corpus violations, Sixth Amendment right to counsel violations, 42 U.S.C. §§ 1982 1983 violations, and a Bivens action against FBI defendants. Plaintiff has sued all individual defendants in their personal capacities.
See Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
On February 17, 2009, plaintiff filed a third amended complaint [Doc. #77] in response to the court's January 23, 2009, order [Doc. #74]. Several defendants have again filed motions to dismiss plaintiff's complaint for failure to state a claim and lack of jurisdiction. Plaintiff has not responded to defendants' motions.
When considering a Rule 12(b)(6) motion, all well-pleaded factual allegations in the complaint are accepted as true and those allegations and any reasonable inferences that might be drawn from them are construed in the light most favorable to the nonmoving party. The question is whether the complaint contains "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff must "frame a `complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 556). "[A] district court may not grant a motion to dismiss for failure to state a claim merely because [a party] failed to file a response." Issa v. Comp USA, 354 F.3d 1174, 1177 (10th Cir. 2003) (quotation and citation omitted). Applying these standards, as discussed below, the court concludes that defendants' motion must be granted.
DISCUSSION
Plaintiff's third amended complaint fails to address the issues and deficiencies noted in court's orders of December 23, 2008, [Doc. #65] and January 23, 2009 [Doc. #74]. Plaintiff's third amended complaint is substantially the same as his three previous complaints. Plaintiff again fails to "isolate the allegedly unconstitutional acts of each defendant, and thereby does not provide adequate notice as to the nature of the claims against each." Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008). Nor does plaintiff allege how each defendant personally participated in the claimed § 1983 violations. See Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993). Similarly, plaintiff fails to plead his state law claims with a level of factual detail sufficient to show a plausible basis for claim under the standards of Rule 12(b)(6). Further, plaintiff has failed to properly serve the federal defendants, denying this court of jurisdiction over those defendants.
Although plaintiff's pleadings are accorded the liberal interpretation appropriate to a pro se litigant, see Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007), his third amended complaint fails to state a plausible claim against any of the defendants. As noted in the court's January 23, 2009, order, plaintiff's failure to address the pleading deficiencies subject his complaint to the possibility of dismissal with prejudice
Accordingly, the motions to dismiss by defendants Wes Lane and Oklahoma County [Doc. #79], Federal Defendants [Doc. #80], and State of Oklahoma [Doc. #86] are GRANTED. The motion to dismiss by Chase Bank [Doc. #76] is STRICKEN as moot. Because plaintiff has been afforded multiple opportunities to address the pleading deficiencies and has failed to do so, plaintiffs claims against all defendants are DISMISSED with prejudice.