United States District Court, D. Montana, Butte Division
FINDINGS AND RECOMMENDATION
Jeremiah C. Lynch United States Magistrate Judge.
Russell Bullock, appearing pro se, is proceeding in forma
pauperis under 28 U.S.C. § 1915(a)(1). Therefore, the
Court must conduct a preliminary screening of the allegations
set forth in his pleading as required under section
1915(e)(2) which requires a dismissal of the action if, inter
alia, the allegations fail to state a claim upon which relief
could be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
Order entered May 8, 2017, the Court reviewed Bullock's
allegations in his initial pleading to determine whether they
are subject to dismissal under section 1915(e)(2). The Court
construed his allegations as purporting to state claims for
relief under 42 U.S.C. § 1983. But ultimately, the Court
concluded that Bullock's allegations, as pled, were
insufficient to state a claim upon which relief could be
granted. Bullock was afforded an opportunity to file an
amended pleading to cure the deficiencies.
review of Bullock's allegations the Court provided him
with extensive and detailed guidance as to the necessary
elements of all of his legal claims. The guidance included
instructions as to what factual allegations would be
necessary to plead the elements of a section 1983 claim, a
denial of medical care claim under the Fourteenth Amendment,
an individual's personal liability, a supervisory
officer's liability, Gallatin County's liability, and
a private actor's liability under section 1983.
filed his amended pleading in response to the Court's
order. Based on his initial pleading, the Court understands
his allegations to arise from events which occurred while he
was previously incarcerated at the Gallatin County Detention
Center in Bozeman, Montana. He complained of multiple head
injuries he purportedly sustained and, generally,
Defendants' alleged failure to provide him with proper
medical attention for his injuries.
substance of Bullock's amended pleading, however,
continues with only general allegations. His pleading does
not provide any necessary details as is required to state a
claim for relief and to impose liability on any Defendant.
Instead, although Bullock's allegations allude to extreme
pain from his conditions, his limited allegations assert only
that all Defendants have been trained “how to play the
game, ” and they have “denied [him]
medical.” He contends Defendants engaged in a
“round and round game” with respect to his
medical conditions. (Doc. 14 at 6 of 9.)
amended pleading provides absolutely no further substantive
factual allegations as to any Defendant's specific
conduct. Despite the guidance provided in the Court's May
8, 2017 Order, Bullock's allegations do not describe what
each Defendant did, or failed to do with respect to obtaining
or providing medical treatment for Bullock as is necessary to
state a Fourteenth Amendment claim. (See doc. 9 at
6.) Like his original pleading, his amended pleading contains
only bare, non-descriptive general statements. He does not
set forth factual allegations describing what each individual
Defendant did or did not do with respect to his medical care.
(Doc. 9 at 6-7.)
Court's May 8, 2017 Order also provided details with
respect to the factual allegations that would be necessary to
successfully state a claim for relief against any individual
Defendant who may have played a role as a supervisor. (Doc. 9
at 7-8.) But Bullock's amended pleading does not
expressly identify any supervisor and does not describe
specific facts about what any particular supervisor did or
did not do that would subject the supervisor to direct
liability under 42 U.S.C. § 1983.
Bullock's amended pleading does not include any facts
demonstrating that Gallatin County or any “private
actor” is liable under section 1983. Bullock does not
allege that Gallatin County followed a custom, policy, or
practice of unconstitutionally denying medical treatment to
pretrial detainees, or that Gallatin County demonstrated
deliberate indifference to an obvious need to provide better
training to its jail staff. (Doc. 9 at 9-11.) And with
respect to any private individuals, Bullock has not pled
facts which suggest any private person's conduct was
“fairly attributable to the state” as is
necessary for a section 1983 claim against a private person.
(Doc. 9 at 12.)
reasons stated, and based upon all of the legal standards the
Court discussed in its May 8, 2017 Order (which are
incorporated herein by this reference), the Court concludes
Bullock's amended pleading fails to state any claim upon
which relief could be granted.
“[d]ismissal of a pro se complaint without leave to
amend is proper only if it is absolutely clear that the
deficiencies of the complaint could not be cured by
amendment.” Weilburg v. Shapiro, 488 F.3d
1202, 1205 (9th Cir. 2007) (quoting Schucker
v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir.
1988)). But, where a court previously notified a litigant of
deficiencies in his allegations, and afforded the litigant an
opportunity to amend the claims, if the litigant files an
amended pleading which fails to cure the defects identified
by the court, then the court may conclude that the
deficiencies cannot be cured by further amendment and the
court need not afford the litigant an additional opportunity
to amend. Kendall v. VISA U.S.A., Inc., 518 F.3d
1042, 1051-52 (9th Cir. 2008). A “repeated
failure to cure deficiencies by amendments” is
sufficient to justify a dismissal without leave to amend.
Leadsinger, Inc. v. BMG Music Publishing, 512 F.3d
522, 532 (9th Cir. 2008) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)).
upon the foregoing, IT IS RECOMMENDED that Bullock's
amended pleading, and this action be DISMISSED for failure to
state a federal claim. 28 U.S.C. § 1915(e)(2)(B)(ii).
presiding District Judge adopts this recommendation, then the
Clerk of Court should be directed as follows:
Close this matter and enter judgment in favor of Defendants
pursuant to Rule 58 of ...