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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CALVIN ROUSE,

Plaintiff,

v.

DOUG WADDINGTON et al.,

Defendants.

Case No. C06-5183RJB

REPORT AND

 RECOMMENDATION

 

 NOTED FOR:

June 20, 2007

This 42 U.S.C. § 1983 Civil Rights action has been referred to the undersigned Magistrate Judge

pursuant to Title 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 1, MJR 3, and

MJR 4. 

This complaint was originally transferred from the Eastern District of Washington in April of 2006

(Dkt. # 1). After review of the complaint the court entered a Report and Recommendation to dismiss, as

plaintiff was challenging his length of confinement (Dkt. # 13). Plaintiff then sought leave to amend and add

other claims regarding medical treatment. He was given leave to amend in July of 2006 (Dkt. # 16). It was

not until November of 2006 that plaintiff provided the documents needed for service and the court ordered

service by mail (Dkt. # 24). Within two weeks of the order of service, plaintiff asked for leave to amend the

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complaint (Dkt. # 25). The motion was denied (Dkt. # 27).

In February of 2007 plaintiff again sought to amend the complaint and attempted to raise issues

regarding the length of his sentence and disciplinary charges. These issues had already been dismissed from

the case (Dkt # 38). The motion was denied (Dkt. # 41).

Defendants then moved for a more definite statement (Dkt. # 42). The court reviewed the amended

complaint and concurred with defendants that a more definite statement was needed (Dkt. # 43). Plaintiff was

ordered to provide a second amended complaint that provided greater detail as to his claims. Plaintiff has not

complied with that order. Accordingly, the court recommends this action be DISMISSED WITHOUT

PREJUDICE.

DISCUSSION

As defendants noted in the motion for a more definite statement:

Fed. R. Civ. P. 8 requires a complaint to contain “a short and plain statement of the

claim showing that 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 that 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).

(Dkt. # 42, page 2). Defendants met their burden and pointed out the specific defects in the complaint

(Dkt. # 42). Plaintiff has not filed the second amended compliant. In the motion for a more definite

statement defendants compare this action to McHenry v. Renne, 84 F.3d 1172 (9th. Cir. 1996). 

Defendants argued:

Plaintiff’s Amended Complaint is very similar to that addressed in McHenry v.

Renne, 84 F.3d 1172 (9th. Cir. 1996). That complaint contained “mostly ‘narrative

ramblings’ and ‘storytelling.’” Id. at 1176. The complaint did not conform to the traditional

pleading style of a short and plain statement and did not “provide defendants notice of what

legal claims are asserted against which defendants.” Id. The complaint was “argumentative,

prolix, replete with redundancy, and largely irrelevant. It consist[ed] largely of immaterial

background information.” Id. at 1177. The Ninth Circuit Court of Appeals affirmed

dismissal of the complaint with prejudice for failure to comply with the District Court’s

order to amend the complaint to comply with Fed. R. Civ. P. 8. Id. at 1180.

Plaintiff’s amended complaint was somewhat rambling and defendants motion for a more definite

statement was well taken. Plaintiff has failed to follow the court’s order despite being given over a month

to comply (Dkt. # 43). The court is not comfortable dismissing the action with prejudice, as the merits of

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plaintiffs claims have not been addressed. Accordingly, the court recommends this action be DISMISSED

WITHOUT PREJUDICE. A proposed order accompanies this report and recommendation. 

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ.

P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v

Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to

set the matter for consideration on June 20, 2007, as noted in the caption. 

DATED this 21 day of May, 2007.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

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