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Humphreys v. Burgher

United States District Court, W.D. Washington, Tacoma

November 5, 2019

Scott Wesley Humphreys, Plaintiff,
v.
Luke Burgher et al, Defendants.

          ORDER

          J. Richard Creatura United States Magistrate Judge.

         Plaintiff Scott Wesley Humphreys, proceeding pro se and in forma pauperis, filed this civil rights Complaint under 42 U.S.C. § 1983. Presently pending in this action is defendants' motion for a more definite statement (“motion”). Dkt. 62. The Court concludes that the allegations in the fourth amended complaint are vague and ambiguous, and the fourth amended complaint improperly attempts to incorporate by reference prior complaints. Therefore, the Court grants defendants' motion. Plaintiff is required to file an amended complaint within 14 days of the date of this order that does not incorporate by reference any previously submitted complaints or documents and states the actual factual allegations against each of the defendants for which plaintiff requests relief.

         The Court will address the motion to dismiss filed by defendants Cotton, Jones, Sharp, Thrasher, and Walden (Dkt. 63) in a separately filed report and recommendation.

         BACKGROUND

         On August 7, 2019, the undersigned entered a report and recommendation granting in part and denying in part defendants' motion to dismiss. Dkt. 57. The undersigned recommended that plaintiff be granted leave to amend his complaint with respect to the following claims:

is granted leave to amend his complaint on or before [DATE] with respect to plaintiff's claims against: (1) defendant Burgher for sexual harassment; (2) defendant Bennett for sexual harassment and violations of plaintiff's right to access to the courts and equal protection; (3) defendant Lystad for violations of the Eighth Amendment related to plaintiff's medical treatment; (4) defendant Jolly for due process violations; (5) defendant Sharpe for violations of access to the courts; (6) defendants Cardwell, Casey, Gilbert, Haynes, Jones, Burgher, and Tornquist for failure to protect; (7) defendant Haynes and Gilbert for supervisory liability; and (8) defendants Thrasher, Cotton, Corder, and Walden for any constitutional violations cognizable under § 1983.

Dkt. 57, 57-1.

         On August 26, 2019, prior to District Judge Bryan's ruling on the report and recommendation, plaintiff filed a proposed fourth amended complaint. Dkt. 59. On September 16, 2019, District Judge Robert J. Bryan adopted the undersigned's report and recommendation on defendants' motion to dismiss. Dkt. 60. District Judge Bryan also determined that plaintiff's fourth amended complaint was now the operative complaint in this matter. Dkts. 60, 61.

         On October 1, 2019, defendants filed the motion for a more definite statement requesting that plaintiff be directed to file an amended complaint. See Dkt. 62. The same day, defendants Cotton, Jones, Sharp, Thrasher, and Walden filed a motion to dismiss. Dkt. 63. On October 14, 2019, plaintiff filed a proposed fifth amended complaint. Dkt. 64.

         DISCUSSION

         Federal Rule of Civil Procedure 8 requires a complaint to contain “a short and plain statement of the claim showing the pleader is entitled to relief, ” and “[e]ach averment of a pleading shall be simple, concise, and direct.” Fed.R.Civ.P. 8(a)(e). If a pleading is so vague or ambiguous a defendant “cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement.” Fed.R.Civ.P. 12(e). “If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). Defendants are required to “point out the defects complained of and the details desired.” Fed.R.Civ.P. 12(e).

         In their motion, defendants request that the Court direct plaintiff to file another amended complaint that does not incorporate by reference any previously submitted complaints or documents and states the actual factual allegations against each of the defendants for which plaintiff requests relief. Dkt. 62.

         First, defendants maintain that plaintiff has attempted to incorporate by reference facts from a previous complaint. See Dkt. 61 at 6, 8-9, 11. An amended pleading operates as a complete substitute for the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (citing Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990)). “All causes of action alleged in an original complaint which are not alleged in an amended complaint are waived.” Marx v. Loral Corp., 87 F.3d 1049, 1055-56 (9th Cir. 1996) (quoting King v. Atiyeh, 814 F.2d 565 (9th Cir. 1987)). Therefore, plaintiff is required to amend his complaint and is instructed not to attempt to incorporate by reference or join any prior complaints with his amended complaint.

         Second, defendants maintain that they are unable to properly respond to the fourth amended complaint because the allegations in the fourth amended complaint are conclusory and not causally connected to defendants. Dkt. 62 at 3. To state a claim under 42 U.S.C. § 1983, plaintiff must allege facts showing how a defendant caused or personally participated in causing the harm alleged in the complaint. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); Arnold, 637 F.2d at 1355. A person subjects another to a deprivation of a constitutional right when committing an affirmative act, participating in another's affirmative act, or omitting to perform an act which is legally required. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Sweeping conclusory allegations against an official are insufficient to state a claim for relief. Leer, 844 F.2d at ...


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