Opinion
2:08-CV-01742-PMP-PAL.
September 3, 2010
ORDER
Before the Court for consideration is Defendant Leroy Kirkegard's fully briefed Motion to Dismiss Pursuant to FRCP 12(B)(6) (Doc. #39), filed on May 24, 2010.
After a lengthy history of preliminary proceedings concerning the initiation of this action, Plaintiff Laurice McCurdy filed an Amended Civil Rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. #18) filed August 10, 2010. On April 9, 2010, the Court issued an Order based upon an initial screening of Plaintiff's First Amended Compliant (Doc. #19), providing in part for Plaintiff McCurdy to maintain his claims against Defendant Leroy Kirkegard for (1) deliberate indifference to McCurdy's serious medical needs; (2) cruel and unusual punishment in the condition of McCurdy's confinement. Defendant Kirkegard now seeks dismissal of both remaining claims.
Specifically, Kirkegard argues that McCurdy's claim of deliberate indifference to a serious medical need should be dismissed because Plaintiff has not and cannot allege an actual connection or link between Kirkegard's actions and the alleged deprivation of a well established constitutional right. As to McCurdy's cliam based upon cruel and unusual punishment in the conditions of this confinement, Defendant Kirkegard similarly argues that McCurdy alleges no conduct by Kirkegard related to McCurdy's slip and fall in the bathroom. The Court agrees.
In sum, after extensive efforts to formulate a viable Complaint under 42 U.S.C. § 1983, Plaintiff McCurdy has failed to allege facts which if proved would entitle him relief against Defendant Kirkegard in his individual capacity. It is also clear that further opportunities to amend the pleadings would not alter the result.
IT IS THEREFORE ORDERED that Defendant Leroy Kirkegard's Motion to Dismiss Pursuant to FRCP 12(B)(6) (Doc. #39) is GRANTED. IT IS FURTHER ORDERED that Defendant Kirkegard's Motion to Strike Plaintiff's Surreply (Doc. #86) is DENIED as moot.
DATED: September 3, 2010.