Eberhardt v. Graves et al

Filing 7

OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Pro se Plaintiff Don Frank Eberhardt is given until April 29, 2016, to file a second amended complaint which is complete unto itself, which names all defendants and includes all allegatio ns, claims, and prayers for relief on which Plaintiff wishes to proceed. If Plaintiff does not timely file such a second amended complaint, the matter will proceed on the claims asserted in the current amended complaint 5 . See written order. (LB, ilcd)

E-FILED

Friday, 15 April, 2016 03:37:34 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

DON FRANK EBERHARDT,
Plaintiff,
v.
LESLIE GRAVES, Judge;
APRIL TROEMPER, Judge;
AURA MONICA EBERHARDT;
PEGGY J. RYAN, Esq.;
JACKSON DONLEY, Esq.;
MICHAEL COSTELLO, Esq.;
RUDOLPH BRAUD Jr., Judge,
Defendants.

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No. 16-cv-3080

OPINION AND ORDER
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
Plaintiff Don Frank Eberhardt has filed a document entitled
Complaints (d/e 5) (New Filing). The New Filing states in the caption under
the case number that it is an, “AMENDED complaint” (emphasis in the
original). As an amended complaint, the New Filing supersedes the initial
Complaint (d/e 1) (Original Complaint). See Duda v. Board of Ed. of
Franklin Park Public School Dist. No. 84, 133 F.3d 1054, 1056 (7th Cir.
1998); Jones-El v. Pollard, 2007 WL 1847272 (E.D. Wis. June 26, 1977).
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It is unclear that Eberhardt intended to forego allegations and claims
in the Original Complaint that he did not incorporate into the New Filing.
For example, the New Filing does not list Sangamon County, Illinois, Circuit
Judge Leslie Graves or Associate Circuit Judge April Troemper as
defendants in the caption and does not mention them by name in the body
of the document. In another example, the New Filing also asks for different
relief. The Original Complaint asked the Court to order Defendant Aura
Monica Eberhardt (Aura) to cease and desist from ever using Eberhardt’s
family name. See Complaint, Collective Attachments, at 8. The New Filing
does not ask for this relief. New Filing, at 8. Such omissions would
normally mean that Eberhardt elected to drop the allegations and claims
not included in the New Filing, including any claims against Judges Graves
and Troemper, and his prayer to stop Aura from using his family name.
Eberhardt may not have intended this outcome.
THEREFORE, IT IS ORDERED that Plaintiff Don Frank Eberhardt is
given until April 29, 2016, to file a second amended complaint which is
complete unto itself, which names all defendants and includes all
allegations, claims, and prayers for relief on which Plaintiff wishes to
proceed. If Plaintiff does not timely file such a second amended complaint,

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the matter will proceed on the claims asserted in the current amended
complaint herein referred to as the New Filing and styled Complaints
(d/e 5).
ENTER: April 15, 2016

s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE

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