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Nelson v. Tewalt

United States District Court, D. Idaho

August 12, 2019

GREGORY JOSEPH NELSON, Plaintiff,
v.
JOSH TEWALT; HENTY ATENCIO; ALBERTO RAMIREZ; KEITH YORDY; RANDY VALLEY; CPL. SHABER; CPL. LOMBARDI; SGT.; SGT. BLANCHARD; SGT. CO MARTIN; SGT. BAROSO; C.O. McARTHUR; CPL. DUTTER; ISCI CAMPBELL; LT. R. WINTER; LT. EUGENE CLARK; SGT. SEELY; and C.O. JOHN DOES I-III, Defendants.

          INITIAL REVIEW ORDER BY SCREENING JUDGE

          DAVID C. NYE CHIEF U.S. DISTRICT COURT JUDGE.

         The Clerk of Court conditionally filed Plaintiff Gregory Joseph Nelson's Amended Complaint as a result of Plaintiff's status as an inmate and in forma pauperis request.[1] The Court now reviews the Amended Complaint to determine whether it should be summarily dismissed in whole or in part under 28 U.S.C. §§ 1915 and 1915A. Having reviewed the record, and otherwise being fully informed, the Court enters the following Order directing Plaintiff Nelson to file a second amended complaint if Plaintiff intends to proceed.

         1. Screening Requirement

         The Court must review complaints filed by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity, as well as complaints filed in forma pauperis, to determine whether summary dismissal is appropriate. The Court must dismiss a complaint or any portion thereof that states a frivolous or malicious claim, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b).

         2. Pleading Standard

         A complaint 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). A complaint fails to state a claim for relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient for the reviewing court plausibly “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 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. In other words, although Rule 8 “does not require detailed factual allegations, ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (internal quotation marks omitted). If the facts pleaded are “merely consistent with a defendant's liability, ” or if there is an “obvious alternative explanation” that would not result in liability, the complaint has not stated a claim for relief that is plausible on its face. Id. at 678, 682 (internal quotation marks omitted). And a court is not required to comb through a plaintiff's exhibits or other filings to determine if the complaint states a plausible claim.

         3. Discussion

         Plaintiff has not alleged sufficient facts to proceed with the Amended Complaint. The Amended Complaint contains few facts of its own. Instead, the Amended Compliant attempts to incorporate the factual allegations in the original complaint filed by Jesus George Ayala, Plaintiff Nelson's initial co-plaintiff, in Ayala v. Tewalt, 1:19-cv-00107-DCN, perhaps to avoid the page limitations of General Order 342. See Dkt. 1.

         However, such a tactic is not permitted. It is well-established that any amended complaint must contain all allegations in a single pleading and cannot rely upon, attach, or incorporate by reference other pleadings or documents. Dist. Idaho Loc. Civ. R. 15.1 (“Any amendment to a pleading, whether filed as a matter of course or upon a motion to amend, must reproduce the entire pleading as amended. The proposed amended pleading must be submitted at the time of filing a motion to amend.”); see also Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (“[An] amended complaint supersedes the original, the latter being treated thereafter as non-existent.”), overruled in part on other grounds by Lacey v. Maricopa County, 693 F.3d 896, (9th Cir. 2012) (en banc); Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990) (holding that the district court erred by entering judgment against a party named in the initial complaint, but not in the amended complaint).

         Thus, the amended complaint fails to state a claim upon which relief may be granted. The Court will grant Plaintiff 28 days to file a second amended complaint.

         4. Potentially-Applicable Standards of Law

         Mindful of Plaintiff's pro se status, the Court provides the following standards of law that may be applicable to Plaintiff's claims. Plaintiff should keep the following standards in mind if he files a second amended complaint.

         A. Federal Claims

         Plaintiff brings claims under 42 U.S.C. § 1983, the civil rights statute. To state a plausible civil rights claim, a plaintiff must allege a violation of rights protected by the Constitution or created by federal statute proximately caused by conduct of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To be liable under § 1983, “the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind.” Kingsley v. Hendrickson, 135 S.Ct. 2466, 2472 (2015). Negligence is not actionable under ยง 1983, because a negligent act by a public official is ...


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