Opinion
Civil No. 04-1584-HO.
November 12, 2004
ORDER TO PROCEED IN FORMA PAUPERIS AND TO DISMISS
IN FORMA PAUPERIS/FILING FEE
Plaintiff, an inmate at the Oregon State Penitentiary, filed this action pursuant to 42 U.S.C. § 1983 and has now moves to proceed in forma pauperis (#1). An examination of the application reveals that plaintiff is unable to afford the fees of this action. Accordingly, plaintiff's application (#1) is allowed. However, the Clerk of the Court shall not issue process until further order of the court.
ORDER TO DISMISS
I. BACKGROUNDPlaintiff alleges: "Jail officials have refused to process me through the system and I have been here since August 24th and they choose to keep me around unsentenced inmates even after I've already been sentenced. Inmates who have not been sentenced have nothing to lose. They also choose to keep me housed around racist inmates even after they have been notified of the situation."
Attached to plaintiff's complaint are various jail "kytes," and grievances and defendants' responses and incident reports. Plaintiff also submitted a packet of papers which he opines are "nothing important" and are submitted for the court's "reading enjoyment." These documents indicate that plaintiff complained to defendants about alleged verbal racial harassment and may have been involved in an assault incident of some kind. However, none of the facts suggested in these documents are specifically alleged or incorporated into plaintiff's complaint.
For the reasons set forth below, plaintiff's complaint is dismissed for failure to state a claim. See Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2)); see also Sparling v. Hoffman Constr. Co., 864 F.2d 635, 637 (9th Cir. 1988).
II. STANDARDS
"In federal court, dismissal for failure to state a claim is proper 'only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)); Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989). In making this determination, this court accepts all allegations of material fact as true and construes the allegations in the light most favorable to the nonmoving party.Tanner, 879 F.2d at 576.
In civil rights cases involving a plaintiff proceeding pro se, this court construes the pleadings liberally and affords the plaintiff the benefit of any doubt. McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).
Before dismissing a pro se civil rights complaint for failure to state a claim, this court supplies the plaintiff with a statement of the complaint's deficiencies. McGuckin, 974 F.2d at 1055; Karim-Panahi, 839 F.2d at 623-24; Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se litigant will be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Karim-Panahi, 839 F.2d at 623; Noll v. Carlson, 809 F.2d 1446, 1447 (9th Cir. 1987).
III. DISCUSSION
Pursuant to Fed.R.Civ.P. 8(a), a complaint shall include "(1) a short and plain statement of the grounds upon which the court's jurisdiction depends . . ., (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for judgment for the relief the pleader seeks." "Each averment of a pleading shall be simple, concise and direct." Fed.R.Civ.P. 8(e).
A district court has the power to dismiss a complaint when a plaintiff fails to comply with Federal Rules of Civil Procedure 8(a) and 8(e). McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996); Nevijel v. North Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981).
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).
In order to state a claim against a named defendant, plaintiff must allege specific facts about that defendant and identify how that defendant's conduct violated his rights. General allegations are insufficient. The absence of any factual allegations against a named defendant will entitle that defendant to have the complaint dismissed as to him, pursuant to Fed.R.Civ.P. 12(b). Polk v. Montgomery County, 548 F. Supp. 613, 614 (D.Md. 1982). See also, Morabito v. Blum, 528 F.Supp. 252, 262 (S.D.N.Y. 1981). Although pro se complaints are to be interpreted liberally, Haines v. Kerner, 92 S.Ct. 594 (1972), the court may not supply essential elements that are not pleaded.Ivey v. Board of Regents, 673 F.2d 266 (9th Cir. 1982).
I find that the complaint before the court does not meet the minimal pleading requirements of the federal rules. The papers submitted in support of plaintiff's complaint indicate that he may have been verbally harassed by other inmates. However, such conduct, however obnoxious, without more does not give rise to a claim under 42 U.S.C. § 1983. Plaintiff has not alleged any facts that would suggest an unconstitutional failure to protect him from other inmates or specifically identified the nature "due process violation" he alleges. As noted above, it is not the court's responsibility to parse the record for possible claims.
CONCLUSION
Plaintiff's Application to Proceed In forma Puaperis (#1) is allowed. However, plaintiff's complaint is DISMISSED for failure to state a claim. Plaintiff may file an amended complaint, curing the deficiencies noted above, within 30 days of the date of this order. Plaintiff is advised that failure to file an amended complaint shall result in the dismissal of this proceeding, with prejudice. In lieu of an amended complaint, plaintiff may move to voluntarily dismiss this action, without prejudice.
Plaintiff is advised that Pursuant to the Prison Litigation Reform Act, 28 U.S.C. § 1915(b)(1)), a prisoner proceeding in forma pauperis is required to pay the full filing fee of $150.00 when funds exist. Therefore, upon the filing of an amended complaint, if any, an order will be entered directing defendants to collect from plaintiff's trust account the $150.00 filing fee in monthly increments of 20 percent of the preceding month's income credited to plaintiff's trust account and forward payments to the Clerk of the Court.
IT IS SO ORDERED.