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Birthmark v. Dept. of Institutions/Dept. of Corrections

United States District Court, D. Montana, Helena Division

February 6, 2014

MICHAEL BIRTHMARK, Plaintiff,
v.
DEPT. OF INSTITUTIONS/DEPT. OF CORRECTIONS, MONTANA STATE PRISON AND THE IMMEDIATE MEMBERS OF THE BOARD OF PARDONS & PAROLE, and PRIVATE STUDIES GROUP OF MINDREADING PSYCHICS, et al., Defendants.

FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

KEITH STRONG, Magistrate Judge.

SYNOPSIS

Plaintiff Michael Birthmark filed an Amended Complaint (Doc. 7) after the Court found that the allegations in his original Complaint were so vague that the Complaint failed to state a claim upon which relief could be granted. (Doc. 6.) Mr. Birthmark failed to correct the deficiencies identified in his original complaint. The Amended Complaint is nearly incomprehensible and his allegations are so vague that the Amended Complaint fails to state a claim upon which relief may be granted. This case should be dismissed.

JURISDICTION

Mr. Birthmark filed this action in federal court, in the Great Falls Division of the District of Montana. (Doc. 2.) Venue is proper, as he is incarcerated in and alleges wrongs committed in Powell County, Montana. Local Rule 3.2(b)(3). The Court has personal jurisdiction over the parties, all of whom are found in Montana. Fed.R.Civ.P. 4(k)(1)(A); Mont. R. Civ. P. 4(b). Read liberally, the Complaint attempts to allege a violation under 42 U.S.C. § 1983, invoking subject matter jurisdiction. 28 U.S.C. § 1331, 28 U.S.C. § 1343(a). The case was assigned to Hon. Donald W. Molloy, United States District Court Judge, and referred to the undersigned. Local Rule 72.2(a)(1).

STATUS

Mr. Birthmark previously filed a Complaint (Doc. 1) that the Court reviewed before service, as it must for complaints filed by prisoners. See 28 U.S.C. § 1915. The Complaint could not be served because it failed to state a claim on which relief could be granted. Mr. Birthmark was granted leave to amend the Complaint to attempt to correct the deficiencies. (Doc. 6.)

Mr. Birthmark has filed an Amended Complaint which must also be reviewed before it is served on the Defendants to determine if the allegations are frivolous, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915, 1915A. If so, the Amended Complaint must be dismissed. 28 U.S.C. § 1915(e)(2). This is the review.

Mr. Birthmark's Amended Complaint (Doc. 7) indicated he was to be discharged from prison on November 14, 2013. (Amended Complaint, Doc. 7 at 6.) The Department of Corrections website verifies that Mr. Birthmark is no longer incarcerated. Mr. Birthmark has not updated his address with the Court.

STANDARDS

Stating a claim

A complaint must allege sufficient factual matter to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility is less than probability, but requires "more than a sheer possibility that a defendant has acted unlawfully." Id. Pleadings that are no more than conclusions are not entitled to the presumption of truth and may be disregarded. Id. at 679. A plaintiff must plead the essential elements of a claim to avoid dismissal for failure to state a claim. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

Leave to amend

Pro se orders must be liberally construed. Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). "Unless it is absolutely clear that no amendment can cure the defect... a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal ...


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