Summary
advising the plaintiff that his amended pleading "will operate as a complete substitute for the present complaint, not as a supplement"; further advising the plaintiff that he "may not refer to his [prior pleading] by reference, and must set forth the complete, but concise, statement of the elements of each claim" in the new, amended pleading
Summary of this case from Vimegnon v. Or. Health & Sci. Univ.Opinion
Civil No. 02-1126-BR.
November 17, 2004
Paul John Torres, Jr., Ontario, OR, Plaintiff Pro Se.
HARDY MYERS, Attorney General, LEONARD W. WILLIAMSON, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Defendants.
OPINION AND ORDER
Plaintiff, an inmate at the Snake River Correctional Institution, brings this civil rights action pursuant to 42 U.S.C. § 1983 pro se. Currently before the Court is Defendants' Motion to Strike or Alternatively to Make More Definite and Certain (#24).
BACKGROUND
Plaintiff's Amended Complaint purports to state three separate claims for relief against various defendants pursuant to 42 U.S.C. § 1983. The three claims, however, together comprise a 12-page narrative statement, with numerous, often unrelated, allegations concerning denial of medical care, denial of access to religious activities, and failure to protect Plaintiff from assaultive inmates.
Defendants move to strike the Amended Complaint or, in the alternative, for an order requiring Plaintiff to make more definite and certain. Defendants argue the Amended Complaint does not contain clear concise allegations required by Fed.R.Civ.P. 8, and that several allegations should be stricken because they involve conduct clearly outside the statute of limitations.
DISCUSSION
I. Motion to StrikePursuant to Fed.R.Civ.P. 12(f), upon motion by a party "the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Defendants move to strike allegations in Plaintiff's Amended Complaint involving conduct clearly outside the statute of limitations. Because such allegations are not patently redundant, immaterial, impertinent, or scandalous, however, Defendants' motion is DENIED, without prejudice to Defendants' right to assert limitations as a defense to any claims in this action.
II. Motion to Make More Definite and Certain
Pursuant to Fed.R.Civ.P. 3, "[a] civil action is commenced by filing a complaint with the court." Pursuant to Fed.R.Civ.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).
Pursuant to Fed.R.Civ.P. 12(e), if a complaint "is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading." As noted, Defendants argue Plaintiff's Amended Complaint does not include clear and concise allegations, and it is impossible to readily identify the issues of the three claims alleged. The Court agrees.
Accordingly, the Court ORDERS Plaintiff to file a Second Amended Complaint within 30 days of the date of this order, curing these deficiencies. Plaintiff is advised that the Second Amended Complaint must state: (a) the name(s) of each person or persons (including "John Does") who caused or personally participated in causing the alleged deprivation of plaintiff's constitutional rights; (b) the specific constitutional provision or provisions which were violated ( e.g. Eighth Amendment); (c) the dates on which the conduct allegedly took place; (d) the specific conduct that plaintiff alleges is unconstitutional; and (e) how such conduct resulted in any injury to plaintiff. Plaintiff is further advised that the Second Amended Complaint will operate as a complete substitute for the present complaint, not as a supplement. Therefore, Plaintiff may not refer to his First Amended Complaint by reference, and must set forth the complete, but concise, statement of the elements of each claim. Finally, Plaintiff is advised that failure to file a Second Amended Complaint curing these deficiencies will result in the dismissal of this action.
CONCLUSION
For these reasons, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion to Strike or Alternatively to Make More Definite and Certain (#24). The Court DENIES Defendants' request to strike, and GRANTS Defendants request for an Order requiring Plaintiff's to make more definite and certain. Plaintiff shall have 30 days from the date of this Order to file an Amended Complaint.
IT IS SO ORDERED.