Ludy v. Emmons et al

Filing 16

ORDER denying 2 Motion to use exhibits. Further ordering the plaintiff to amend his complaint within 21 days of this order. Signed by Magistrate Judge Brian K. Epps on 11/30/16. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
MITCHELL LUDY,

)
)
Plaintiff,
)
)
v.
)
)
SHAWN EMMONS, Warden;
)
DEANNE MORRIS, Ga. Regent Health
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System Health Service Administrator;
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CHERIE PRICE, Deputy Warden;
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WESLEY O’NEAL, Unit Manager; and
)
MITZI HALL, Director of Nursing, Ga.
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Regent Health System; NURSE PULLINS,
)
Ga. Regent Health System, Johnson State
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Prison; and OFFICER BYRD, Correctional
)
Officer, Johnson State Prison,
)
)
Defendants.
)
_________

CV 316-065

ORDER
_________
Plaintiff, an inmate incarcerated at Rutledge State Prison (“RSP”) in Columbus,
Georgia, commenced the above-captioned case concerning events at Johnson State Prison
(“JSP”). On September 12, 2016, Plaintiff filed an amended complaint alleging new facts
and adding new defendants. Because he is proceeding in forma pauperis (“IFP”), Plaintiff’s
amended complaint must be screened to protect potential defendants. Phillips v. Mashburn, 746
F.2d 782, 785 (11th Cir. 1984); Al-Amin v. Donald, 165 F. App’x 733, 736 (11th Cir. 2006).
I.

BACKGROUND
Plaintiff names as Defendants (1) Warden Shawn Emmons, (2) DeAnne Morris, Health

Service Administrator, (3) Cherie Price, Deputy Warden, (4) Wesley O’Neal, Unit Manager, (5)
Mitzi Hall, Director of Nursing, (6) Nurse Pullins, and (7) Officer Byrd. Taking all of Plaintiff’s
factual allegations as true, as the Court must for purposes of the present screening, the facts are
as follows.
In his original complaint, Plaintiff alleges Defendants Price and Morris ignored his
assisted living designation and placed him in a non-climate controlled dormitory at JSP. (Doc.
no. 1, pp. 11-12.) As a result, Plaintiff’s asthma symptoms worsened. (Id. at 12.) When
Plaintiff filed a grievance regarding his dormitory placement, Defendant Price retaliatorily
removed Plaintiff from barber duty.

(Id.)

Defendant O’Neal removed Plaintiff’s plastic

container used to store his CPAP machine, leading to contamination of the machine and further
exacerbation of Plaintiff’s asthma symptoms. (Id. at 13.)
In his amended complaint, Plaintiff alleges Defendant Pullins refused to provide him with
nebulizer breathing treatments as prescribed by a physician’s assistant at JSP. (Doc. no. 9, p.
11.) In addition, Defendant Byrd continued to turn off the exhaust fans in Plaintiff’s dormitory
which led to Plaintiff being exposed to secondhand smoke and extreme heat. (Id.) As a result of
these Defendants’ actions, Plaintiff suffered multiple asthma attacks over the course of several
days. (Id.) Plaintiff did not name Defendants Price, Morris, O’Neal, or Emmons but did seek
almost identical relief in the amended complaint. (See generally doc. no. 9.)
II.

DISCUSSION
Here, although all his claims surround treatment of his asthma, Plaintiff’s original and

amended complaints state different claims against different defendants.

Normally, “an

amended complaint supersedes the initial complaint and becomes the operative pleading in

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the case.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007); see also Krinsk
v. SunTrust Banks, Inc., 654 F.3d 1194, 1202 (11th Cir. 2011). However, since Plaintiff’s
amended complaint seeks almost identical relief to his original, it appears Plaintiff intends
for his amended complaint to supplement rather than supersede the original. This violates
the prohibition against piecemeal amendment by simply amending sections of his complaint
or submitting separate filings. See Holland v. Burnette, CV 308-090, 2009 WL 1579507, at
*1 (S.D. Ga. June 3, 2009). Therefore, the Court is unable to adequately review Plaintiff’s
complaints in their present form.
The Court recognizes Plaintiff is proceeding pro se and will therefore give him an
opportunity to attempt to cure the pleading deficiencies outlined above by amending his
complaint. Accordingly, the Court hereby ORDERS Plaintiff to amend his complaint to
include all of his allegations in one document, within twenty-one days of the date of this
Order.1 Plaintiff must use the standard form provided along with this Order, with no more than
six handwritten pages attached. See Goodison v. Washington Mut. Bank, 232 F. App’x 922, 923
(11th Cir. 2007) (affirming dismissal of case where plaintiff failed to heed pleading instructions
from court to re-draft complaint to make more concise); see also London v. Georgia Dep’t of
Corr., CV 502-107, doc. no. 10 (M.D. Ga. May 10, 2002) (directing amended complaint shall
not exceed six handwritten pages). If Plaintiff wishes to pursue this case, he MUST file an
amended complaint, which MUST be filed in accordance with the following instructions.

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The Court DIRECTS the CLERK to attach a standard form complaint used by pro se
litigants in the Southern District of Georgia to Plaintiff’s copy of this Order, stamped with this
case number.

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III.

INSTRUCTIONS
The amended complaint must be printed legibly so that the Court may discern

Plaintiff’s claims, and it will supersede and replace in its entirety the previous pleadings filed
by Plaintiff. Krinsk, 654 F.3d at 1202; Lowery, 483 F.3d at 1219 (“an amended complaint
supersedes the initial complaint and becomes the operative pleading in the case”). It must
contain a caption that clearly identifies, by name, each individual that Plaintiff is suing in the
present lawsuit.

Furthermore, the body of Plaintiff’s amended complaint must contain

sequentially numbered paragraphs containing only one act of misconduct per paragraph. The
numbered paragraphs in his amended complaint should include information such as: (i) the
alleged act of misconduct; (ii) the date on which such misconduct occurred; (iii) the names of
each and every individual who participated in such misconduct; and (iv) where appropriate,
the location where the alleged misconduct occurred. While Plaintiff may attach exhibits to
his amended complaint, he shall not incorporate them by reference as a means of providing
the factual basis for his complaint. For example, Plaintiff should not simply state, “See
attached documents.” Thus, Plaintiff must name the individuals whom he seeks to include as
defendants herein in both the caption and the body of his amended complaint; he may not
rely on the fact that individuals are named in the exhibits attached to his amended complaint
as a means of including such persons as defendants to this lawsuit. The Court will not
independently examine exhibits that Plaintiff does not specifically reference (by the exhibit’s
page number) in his amended complaint.
Plaintiff is further cautioned that no portion of any prior complaint shall be
incorporated into his amended complaint by reference. Moreover, Plaintiff shall submit only

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one amended complaint in accordance with the terms of this Order. Therefore, Plaintiff shall
state in the single amended complaint filed in accordance with the terms of this Order all
claims that he wishes the Court to consider as a basis for awarding the relief sought. Once
Plaintiff has complied with the conditions of this Order, the Court will review the amended
complaint to determine which, if any, claims are viable and which, if any, defendants should
be served with a copy of the amended complaint. If no response is timely received from
Plaintiff, the Court will presume that he desires to have this case voluntarily dismissed and
will recommend dismissal of this action, without prejudice. Plaintiff is cautioned that while
this action is pending, he shall immediately inform this Court of any change of address.
Failure to do so will result in dismissal of this case.
IV.

PLAINTIFF’S MOTION TO USE EXHIBITS
As discussed above, Plaintiff’s amended complaint filed in accordance with this

Order will supersede and replace all previous pleadings filed by Plaintiff. See supra III.
Further, Plaintiff has been warned “no portion of any prior complaint shall be incorporated
into his amended complaint by reference.” Id. Therefore, Plaintiff’s Motion to Use Exhibits
from CV 316-033 for this Complaint is DENIED. (Doc. no. 2.)
SO ORDERED this 30th day of November, 2016, at Augusta, Georgia.

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