Riley v. Davis et al

Filing 22

ORDER denying without prejudice 18 Motion to Amend/Correct; finding as moot 19 Motion to Compel; and denying without prejudice 20 Motion to Appoint Counsel. Signed by Magistrate Judge Donald G. Wilkerson on 9/25/2012. (hbs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DANNY RILEY,

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Plaintiff,
v.
DR. J. GARDNER, et al.,
Defendants.

Case No. 3:12-cv-671-GPM-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are Plaintiff Danny Riley’s Motion to Amend the Complaint
(Doc. 18), Motion to Compel (Doc. 19), and Motion to Appoint Counsel (Doc. 20). As set forth
below, Plaintiff’s requests to amend the complaint and for appointment of counsel are DENIED
without prejudice. Plaintiff’s Motion to Compel is found to be MOOT.
MOTION TO AMEND THE COMPLAINT
Riley asks the Court to allow him to amend the complaint to add Wexford Health Sources
as a defendant in the action. Riley informs the Court that he is unable to obtain the full names of
other defendants in the action. He states that Defendant Gardner was employed by Wexford. He
therefore asks the Court to substitute Wexford as a defendant because “they are responsible for
what happened.”
Riley’s Motion to Amend is deficient for two reasons. First, he did not include with his
motion to amend a proposed amended complaint that includes all claims against all defendants.
Under SDIL-LR 15.1, a party seeking to amend a pleading must provide a proposed amended

pleading for the Court’s review. Riley must do so before the Court will consider whether it will
grant leave to file an amended complaint.
Second, Plaintiff may not substitute Wexford Health as a defendant under a theory of
supervisor liability. The doctrine of respondeat superior is not applicable to a § 1983 action.
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). To state a claim against a given
defendant, Plaintiff must allege that defendant was “personally responsible for the deprivation of a
constitutional right.” Id. Accordingly, the Motion for Leave to File an Amended Complaint (Doc.
17) is DENIED without prejudice.
MOTION TO COMPEL
Riley asks the Court to issue an order requiring Wexford Health to provide him with the
current address of Dr. Jon Gardner so that Gardner may be served process. Such an order is
unnecessary at this time. Because the Court granted Riley leave to proceed in forma pauperis, the
Court is responsible for serving the defendants. Defendant Gardner filed a waiver of service on
September 24, 2012. His answer is due November 19, 2012. Thus, an order compelling
Wexford Health to provide Plaintiff with Dr. Gardner’s last known address is unnecessary. The
motion is therefore found to be MOOT.
MOTION FOR APPOINTMENT OF COUNSEL
Riley requested appointment of counsel at the outset of the case (Doc. 2), which the Court
denied because Riley had not demonstrated that he had made a reasonable attempt to obtain
counsel on his own (Doc. 11). Riley’s current motion for appointment of counsel does not
demonstrate that Riley has made a reasonable attempt to find counsel on his own since his first
motion was denied. He states that he needs assistance finding an address for Dr. Gardner and

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names of other defendants. As noted above, Dr. Gardner returned a waiver of service, so his last
known address is unnecessary. Furthermore, Plaintiff’s request for counsel is still premature.
No defendant has answered the complaint. Until answers are filed, a scheduling order is entered
by the Court, and discovery has begun, appointment of counsel is not warranted. Accordingly,
Riley’s second request for appointment of counsel is DENIED without prejudice.
IT IS SO ORDERED.
DATED: September 25, 2012

DONALD G. WILKERSON
United States Magistrate Judge

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