Davis v. Wahl et al

Filing 13

ORDER STRIKING Plaintiffs (First) Amended Complaint (Doc. 7). Should he wish to proceed with this case, Plaintiff shall file his Second Amended Complaint, naming the individual Defendants directly responsible for the alleged deprivations of his cons titutional rights, within 35 days of the entry of this order (on or before August 18, 2011). The Second Amended Complaint must stand on its own, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the Second Amended Com plaint. Failure to file a Second Amended Complaint may result in dismissal of this case pursuant to Federal Rule of Civil Procedure 41(b). The Clerk shall STRIKE FROM THE RECORD Plaintiffs (First) Amended Complaint (Doc. 7). In addition, because muc h of pages 2-6 of the original complaint (Doc. 1) are illegible in their current electronic form, the Clerk is further DIRECTED to re-scan pages 2-6 of Doc.1, and substitute/replace the existing pages 2-6 with the newly re-scanned pages. Service on the Defendants shall not be commenced until after the Court reviews the Second Amended Complaint. ( Amended Pleadings due by 8/18/2011.) Signed by Judge J. Phil Gilbert on 7/14/2011. (beb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH DAVIS, #K-60509,
Plaintiff,
vs.
NURSE WAHL, et al.,
Defendants.

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CASE NO. 10-cv-971-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Joseph Davis, an inmate in Pinckneyville Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is serving a
twenty year sentence for aggravated kidnaping, along with a concurrent sentence of fifty years for
attempted murder. This case is now before the Court for a preliminary review of the complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
28 U.S.C. § 1915A. However, before this preliminary review can be completed, the Court finds it
necessary to address problems with Plaintiff’s (First) Amended Complaint (Doc. 7).
Plaintiff filed his original complaint (Doc. 1) on December 1, 2010, claiming that he has
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been suffering from severe pain and bleeding from his rectum each time he has a bowel movement
or passes gas. The complaint describes his unsuccessful attempts to obtain medical attention for
these problems starting with August 12, 2009, and including another incident on April 20, 2010.
This complaint named as Defendants several medical staff: Defendants Nurse Wahl, Dr. Rector,
and Dr. Shepard, and Health Care Unit Administrators Fenton and Brown. Plaintiff also named
several non-medical-staff Defendants: Warden Davis, Sherry Benton of the Administrative
Review Board, Grievance Officer Deen, and Counselor Kisro.
On February 23, 2011, Plaintiff filed his (First) Amended Complaint Adding Additional
Defendants (Doc. 7). This complaint described a new incident that occurred on August 19, 2010,
in which three non-medical-staff Defendants, Correctional Officers Bassett, Gale, and Hoffena,
refused to allow Plaintiff to obtain medical attention for his rectal bleeding. In addition, Plaintiff
alleged that Defendant Bryant, the dietary manager, refused to give Plaintiff a non-soy diet
(Plaintiff blames the soy content of the prison food for his rectal bleeding and other ailments). In
this amended complaint, Plaintiff failed to include the allegations or Defendants outlined in his
original complaint (Doc. 1), but instead attempted to incorporate those original allegations by
reference (see Doc. 7, p. 2). This is not acceptable.
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original complaint.
Thus, an amended complaint must stand on its own, including all claims and defendants, and
cannot incorporate by reference any portions of a prior complaint which has been voided by virtue
of the filing of the amended complaint. The Court presumes that the Plaintiff does not wish to

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abandon all the claims and defendants that were included in his original complaint. Accordingly,
the (First) Amended Complaint (Doc. 7) shall be stricken from the record, and Plaintiff shall be
given an opportunity to again amend his complaint.
In addition, Plaintiff’s claim against Defendant Bryant for failure to provide a soy-free diet
may not have arisen from the same transaction, occurrence, or series of transactions or
occurrences as Plaintiff’s claims against other Defendants for deliberate indifference to his medical
needs. The Seventh Circuit recently confirmed that separate, unrelated claims belong in different
suits. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Upon review of the Second Amended
Complaint, if the Court determines that Plaintiff raises claims that are not sufficiently related to
each other, the Court may sever any unrelated claims. If a claim is severed, it would be removed
from this case and opened in a new case. A new case number would be assigned and a second
filing fee would be assessed. If the Court determines that severance is appropriate, Plaintiff shall
be notified and allowed an opportunity to voluntarily dismiss the claim to be severed, thus
avoiding the imposition of a second filing fee.
Furthermore, as Plaintiff drafts his Second Amended Complaint, he is advised to keep in
mind the well-established rule that “public employees are responsible for their own misdeeds but
not for anyone else’s.” Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). There is no
supervisory liability in a civil rights suit. “The doctrine of respondeat superior does not apply to
§ 1983 actions; thus to be held individually liable, a defendant must be ‘personally responsible for
the deprivation of a constitutional right.’” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.
2001) (quoting Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). See also Monell v.
Dep’t of Soc. Servs., 436 U.S. 658 (1978); Eades v. Thompson, 823 F.2d 1055, 1063 (7th Cir.

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1987); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983); Duncan v. Duckworth, 644
F.2d 653, 655-56 (7th Cir. 1981). Thus, Defendants who were not directly involved in the alleged
unconstitutional actions are subject to being dismissed from the case.
IT IS HEREBY ORDERED that, should he wish to proceed with this case, Plaintiff shall
file his Second Amended Complaint, naming the individual Defendants directly responsible for the
alleged deprivations of his constitutional rights, within 35 days of the entry of this order (on or
before August 18, 2011). As noted above, the Second Amended Complaint must stand on its
own, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the Second
Amended Complaint. Failure to file a Second Amended Complaint may result in dismissal of this
case pursuant to Federal Rule of Civil Procedure 41(b).
IT IS FURTHER ORDERED that the Clerk shall STRIKE FROM THE RECORD
Plaintiff’s (First) Amended Complaint (Doc. 7). In addition, because much of pages 2-6 of the
original complaint (Doc. 1) are illegible in their current electronic form, the Clerk is further
DIRECTED to re-scan pages 2-6 of Doc.1, and substitute/replace the existing pages 2-6 with the
newly re-scanned pages.
Nothing in this Order should be construed as indicating an opinion on the merits of
Plaintiff’s claims. After Plaintiff files his Second Amended Complaint, the Court shall conduct
preliminary review pursuant to 28 U.S.C. § 1915A, and shall dismiss any claims that are frivolous,
fail to state a claim upon which relief may be granted, or otherwise fail to comply with the
requirements of § 1915A. Service on the Defendants shall not be commenced until after the
Court reviews the Second Amended Complaint.
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of
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Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7 days
after a transfer or other change in address occurs. Failure to comply with this order will cause a
delay in the transmission of court documents and may result in dismissal of this action for want of
prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: July 14, 2011

s/J. Phil Gilbert
United States District Judge

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