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Russell Fennell v. Tasha Souter; et al

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


January 10, 2013

RUSSELL FENNELL, PLAINTIFF,
v.
TASHA SOUTER; ET AL., DEFENDANTS.

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

*E-FILED: January 10, 2013*

NOT FOR CITATION

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT [Re: Docket No. 58]

Plaintiff Russell Fennell, proceeding pro se, filed a form complaint against six individuals, presumably all employees of a Veteran's Administration ("VA") inpatient facility, alleging that their 17 decision to terminate him from a Post-Traumatic Stress Disorder ("PTSD") treatment program constituted racial discrimination because Fennell is a black man. The complaint identifies 19 defendants Tasha Souter and Noah De Gatano as doctors at the VA (and Dr. Souter as the head of 20 the PTSD program), Margaret Lawrence as the "patient advocate" for the PTSD program, and

Kristen Marchak as director of admissions. Defendants Elizabeth Freeman and Robert Jenkins are 22 only mentioned in the complaint where plaintiff names all defendants.

The defendants moved for, and the Court ordered, a more definite statement under Fed. R. Civ. P. 12(e). In that order, the Court found that the complaint did not satisfy Rule 8 of the Federal 25 Rules of Civil Procedure because it was "so vague that, even construed liberally, it fails to give the 26 defendants adequate notice of the claims asserted against them." (Dkt. 56, p. 3.) The Court also 27 found that Plaintiff had run afoul of Rule 10(b)'s requirement to state each claim or fact in 28 numbered paragraphs. The Court gave Plaintiff detailed advice on how to amend his complaint and ordered him to do so by July 20, 2012.*fn1 See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)2

("before dismissing a pro se complaint the district court must provide the litigant with notice of the 3 deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend 4 effectively"). The Court also advised Plaintiff that failure to file an amended complaint by the 5 deadline may result in dismissal of the action. (Dkt. 56, p. 4.) 6

Plaintiff submitted a letter stating that "I feel that my original complaint was qui[t]e[] clear. I am 8 prepared to proceed at a jury trial with the evidence that I was able to a[c]quire mainly from my 9 personal medical records and an investigation the Department of Veteran Affaires conducted to 10 substantiate my suit." (Dkt. 57) Plaintiff also asked the Court to correspond with him through the

telephone because he had moved to Ohio. Plaintiff did provide an updated address.

Defendants now move to dismiss Plaintiff's complaint for failure to comply with a court 13 order.*fn2 Plaintiff did not oppose the motion. The Court telephoned Plaintiff and apprised him of the 14 motion to dismiss and its hearing date. The Court offered Plaintiff the opportunity to participate in 15 the hearing over the telephone and provided Plaintiff with the number for CourtCall. Plaintiff did 16 not appear over the telephone for the hearing. 17

18 if the plaintiff "fails to prosecute or to comply with [the Federal] rules or a court order." Fed. R. 19 Civ. P. 41(b). See also McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (upholding dismissal 20 ofcomplaint for plaintiff's failure to comply with order for a more definite statement); Ferdik v. 21 Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (affirming dismissal of pro se litigant's civil rights 22 complaint for failure to comply with court's order). 23 24

Under Rule 41(b) of the Federal Rules of Civil Procedure, a Court may dismiss a complaint Here, Plaintiff is not following the Federal Rules or obeying Court orders. The fact that he is proceeding pro se and lives outside of this District does not relieve him from complying with the 3 rules or orders of this Court. In light of the insufficient complaint, Plaintiff's failure to comply with 4 the Court order to amend the complaint, and Plaintiff's failure to respond to the motion to dismiss or 5 appear at the hearing, the Court dismisses the action, without prejudice, for failure to prosecute. 6

IT IS SO ORDERED.

C11-03585 HRL Order will be electronically mailed to: Claire Cormier claire.cormier@usdoj.gov 3 Order will be mailed to: 4 Russell F. Fennell 659 Easter Avenue 5 Akron, OH 44307 6 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.


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