Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Neuendorf v. St. Joseph's Hospital

United States District Court, D. Arizona

May 5, 2014

John Calvin Neuendorf, II, Plaintiff,
v.
St. Joseph's Hospital, et al., Defendants.

ORDER

STEPHEN M. McNAMEE, Senior District Judge.

Plaintiff John Calvin Neuendorf, II, who is confined in the Arizona State Prison Complex-Eyman, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and a deficient Application to Proceed In Forma Pauperis. On March 26, 2013, the Court denied the Application to Proceed and dismissed the action under the "three strikes" provision of 28 U.S.C. § 1915(g). On April 5, 2013, Plaintiff filed a Motion for Reconsideration in which he argued that the dismissal under § 1915(g) was in error. On May 21, 2013, Plaintiff filed a Notice of Appeal.

In a July 17, 2013 Order, the Court granted the Motion for Reconsideration and gave Plaintiff 30 days within which to file a complete Application to Proceed In Forma Pauperis. On September 19, 2013, Plaintiff's Appeal was dismissed for lack of jurisdiction.

On August 26, 2013, Plaintiff filed a second deficient Application to Proceed In Forma Pauperis. In a December 13, 2013 Order, the Court denied the deficient Application and gave Plaintiff a final 30 days to pay the filing fee or file a complete Application to Proceed In Forma Pauperis. The Court also granted Plaintiff's Motion to Amend.

On December 17, 2013, Plaintiff filed a Motion for Status (Doc. 33). On December 31, 2013, he filed a Motion for Extension of Time (Doc. 34). On January 6, 2014, Plaintiff filed a "Motion for Judgment against the United States" (Doc. 35).

On January 15, 2014, Plaintiff filed a complete Application to Proceed In Forma Pauperis (Doc. 37) and a Third Amended Complaint (Doc. 39). On January 24, 2014, Plaintiff filed another Application to Proceed (Doc. 40) and a Fourth Amended Complaint (Doc. 42). On February 7, 2014, Plaintiff filed a Fifth Amended Complaint (Doc. 43).

On March 4, 2014, Plaintiff filed a "Motion Quo Statu" (Doc. 44). On April 1, 2014, Plaintiff filed a "Motion for Leave to Amend Civil Rights Complaint" (Doc. 47) and, on April 9, 2014, a "Motion for Scheduling Conference" (Doc. 48). Finally, On April 22, 2014, Plaintiff filed a Notice of Appeal to the Ninth Circuit Court of Appeals (Doc. 49).

The Court will dismiss the Fifth Amendment Complaint for failure to comply with Rules 8 and 10 of the Federal Rules of Civil Procedure and give Plaintiff one final opportunity to amend his claims. Plaintiff will be given 30 days to file a sixth amended complaint. The Court will not grant any further extensions of time and will not consider an amended complaint filed after the 30-day deadline.

The remainder of Plaintiff's pending Motions will be resolved as discussed below.

I. Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff's January 15, 2014 Application to Proceed In Forma Pauperis (Doc. 37) will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will assess an initial partial filing fee of $27.60. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.

The Court will deny as moot Plaintiff's January 24, 2014 Application to Proceed In Forma Pauperis (Doc. 40).

II. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).

If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). The Court will dismiss Plaintiff's Fifth Amended Complaint for failure to state a claim, but because the Fifth Amended Complaint may possibly be saved by amendment, will dismiss it with leave to amend.

III. Fifth Amended Complaint

Plaintiff names more than 40 individuals as Defendants in the Fifth Amended Complaint and raises four claims for relief. Plaintiff seeks injunctive relief and money damages.

IV. Failure to Comply with Rules 8 and 10 of the Federal Rules of Civil Procedure

Rule 8(a) of the Federal Rules of Civil Procedure requires a "short and plain statement of the claim." Fed.R.Civ.P. 8(a)(2). Rule 8(d)(1) states that "[e]ach allegation must be simple, concise, and direct." A complaint having the factual elements of a cause of action scattered throughout the complaint and not organized into a "short and plain statement of the claim" may be dismissed for failure to satisfy Rule 8(a). See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 640 (9th Cir. 1988); see also McHenry v. Renne, 84 F.3d 1172 (9th Cir. 1996). Rule 10(b) of the Federal Rules of Civil Procedure also requires a plaintiff to state claims in "numbered paragraphs, each limited as far as practicable to a single set of circumstances." Fed.R.Civ.P. 10(b). Moreover, "[i]f doing so would promote clarity, each claim founded on a separate transaction or occurrence... must be stated in a separate count." Fed.R.Civ.P. 10(b). It is not the responsibility of the Court to review a rambling narrative in an attempt to determine the number and nature of a plaintiff's claims.

The Court has reviewed Plaintiff's Fifth Amended Complaint and concludes that it fails to comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Although Plaintiff has used the court-supplied form, several portions of the Fifth Amended Complaint are illegible and each count appears to raise multiple claims against multiple Defendants. The Court cannot meaningfully review the Fifth Amended Complaint, as required by 28 U.S.C. § 1915A(a). Accordingly, the Court will dismiss the Fifth Amended Complaint with leave to amend.

V. Leave to Amend

For the foregoing reasons, Plaintiff's Fifth Amended Complaint will be dismissed for failure to comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Within 30 days, Plaintiff may submit a sixth amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a sixth amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the sixth amended complaint and dismiss this action without further notice to Plaintiff.

If Plaintiff files an amended complaint, Plaintiff must write short, plain statements telling the Court: (1) the constitutional right Plaintiff believes was violated; (2) the name of the Defendant who violated the right; (3) exactly what that Defendant did or failed to do; (4) how the action or inaction of that Defendant is connected to the violation of Plaintiff's constitutional right; and (5) what specific injury Plaintiff suffered because of that Defendant's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

Plaintiff must repeat this process for each person he names as a Defendant. If Plaintiff fails to affirmatively link the conduct of each named Defendant with the specific injury suffered by Plaintiff, the allegations against that Defendant will be dismissed for failure to state a claim. Conclusory allegations that a Defendant or group of Defendants has violated a constitutional right are not acceptable and will be dismissed.

Plaintiff must clearly designate on the face of the document that it is the "Sixth Amended Complaint." The sixth amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original or Amended Complaints by reference. Plaintiff may include only one claim per count.

A sixth amended complaint supersedes the original complaint and previously filed amended complaints. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat all previous complaints as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the previous complaints is waived if it is not raised in a sixth amended complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

This is Plaintiff's final opportunity to amend his claims. The Court will not grant any further extensions of time and will not consider an amended complaint filed after the 30-day deadline.

VI. Motions

A. Motions for Status

Plaintiff's December 17, 2013 Motion for Status (Doc. 33) and March 4, 2014 "Motion Quo Statu" (Doc. 44) will be granted to the extent that this Order informs Plaintiff of the status of this case.

B. Motion for Extension of Time

The Court will deny as moot Plaintiff's December 31, 2013 Motion for Extension of Time because Plaintiff's Second Amended Complaint was filed within the filing deadline.

C. Motion for Judgment Against the United States

On January 6, 2014, Plaintiff filed a Motion for Judgment Against the United States (Doc. 35). The Court has not completed statutory screening of Plaintiff's claims and Defendant United States of America has not been served. Accordingly, Plaintiff's Motion is not properly before the Court and will be denied.

D. Motion for Leave to Amend and Motion for Scheduling Conference

Because the Court has dismissed the Fifth Amended Complaint with leave to amend, the Court will grant the Motion to Amend to the extent that Plaintiff has 30 days to file a sixth amended complaint in compliance with this Order.

The Court will deny Plaintiff's April 9, 2014 Motion for Status Conference as premature. There is presently no complaint pending before the Court and Defendants have not yet been served in this action. If Plaintiff files a sixth amended complaint, the Court will determine whether Plaintiff's claims may proceed and, after Defendants have filed an answer, set a schedule for discovery.

VII. Warnings

A. Release

Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.

B. Address Changes

Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.

C. Copies

Because Plaintiff is currently confined in ASPC-Eyman and this case is subject to General Order 14-08, Plaintiff is not required to submit an additional copy of every filing for use by the Court, as would ordinarily be required by Local Rule of Civil Procedure 5.4. If Plaintiff is transferred to a prison other than ASPC-Eyman, he will be notified of the requirements regarding copies for the Court that are required for inmates whose cases are not subject to General Order 14-08.

D. Possible Dismissal

If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).

IT IS ORDERED:

(1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 37) is granted.

(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $27.60.

(3) The Fifth Amended Complaint (Doc. 43) is dismissed for failure to comply with Rules 8 and 10 of the Federal Rules of Civil Procedure. Plaintiff has 30 days from the date this Order is filed to file a sixth amended complaint in compliance with this Order.

(4) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action without prejudice.

(5) Plaintiff's December 17, 2013 Motion for Status (Doc. 33) is granted to the extent this Order informs Plaintiff of the status of this case.

(6) Plaintiff's Motion for Extension of Time (Doc. 34) is denied as moot.

(7) Plaintiff's Motion for Judgment Against the United States (Doc. 35) is denied.

(8) Plaintiff's January 24, 2014 Application to Proceed In Forma Pauperis (Doc. 40) is denied as moot.

(9) Plaintiff's March 4, 2014 "Motion Quo Statu" (Doc. 44) is granted to the extent this Order informs Plaintiff of the status of this case.

(10) Plaintiff's April 1, 2014 Motion for Leave to Amend (Doc. 47) is granted to the extent that Plaintiff may file a sixth amended complaint in compliance with this Order.

(11) Plaintiff's April 9, 2014 Motion for Scheduling Conference (Doc. 48) is denied.

(12) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.