Sanders v. Cowell et al

Filing 41

ORDER DENYING WITHOUT PREJUDICE 35 Motion for Leave to File; GRANTING IN PART 40 Motion. Signed by Magistrate Judge Donald G. Wilkerson on 10/1/13. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JASON SANDERS,
Plaintiff,
v.
TODD W.
BIRKNER,

COWELL

and

Defendants.

)
)
)
)
)
)
NATHAN )
)
)
)

Case No. 3:13-cv-258-GPM-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court is the Motion for Leave to File a Second Amended
Complaint filed by Plaintiff, Jason Sanders, on September 24, 2013 (Doc. 35) and the Motion for
Subpoenas filed by Plaintiff on October 1, 2013 (Doc. 40). The Motion for Leave to File is
DENIED WITHOUT PREJUDICE and the Motion for Subpoenas is GRANTED IN PART.
Plaintiff seeks to amend his complaint in order to assert more facts against the individual
Defendants. The Court notes that Plaintiff had filed his first motion to amend on September 19,
2013 in which he sought to correct the naming of a party (from Edward Birkner to Nathan Birkner)
(Doc. 19). That motion was granted on September 24, 2013 (Doc. 33) and Nathan Birkner was
ordered to be served in accordance with Federal Rule of Civil Procedure 4.

The pending motion

was filed after the first motion to amend was filed but prior to Plaintiff’s receipt of the Order
granting that first motion to amend. As such, Plaintiff is seeking to file a Second Amended
Complaint. The proposed Second Amended Complaint, however, is only a two page document
(that is not on a form) that does not set forth the claims made in either the Complaint or the
Amended Complaint. It is therefore insufficient because it does not set forth any of the items

listed in Federal Rule of Civil Procedure 8 (there is no statement of jurisdiction, no statement of
Plaintiff’s claims, and no demand for relief). Plaintiff is informed that a proposed amended
pleading will supersede and render null prior pleadings; therefore, it must include all information
required by Rule 8. In addition, it is unnecessary for Plaintiff to include additional facts – Rule 8
only requires notice pleading; and, in any event, Plaintiffs claims will proceed as outlined by Judge
Murphy on April 17, 2013 (Doc. 9).

This motion is accordingly DENIED WITHOUT

PREJUDICE (Doc. 35).
Plaintiff also seeks 7 subpoenas in order to conduct depositions by written questions
pursuant to Federal Rule of Civil Procedure 31. Leave of court is required for an inmate to
conduct depositions by written questions. FED.R.CIV.P. 31(a)(2)(B). The Clerk is DIRECTED
to provide Plaintiff with the requested number (7) of subpoena forms, blank and unsigned.
Plaintiff shall complete the forms and submit them to the Court for review. In addition, Plaintiff
shall submit the questions he seeks to ask, shall indicate what relevant testimony the deponent will
provide, and shall inform the Court of the “name or descriptive title and the address of the officer
before who the deposition will be taken.” FED.R.CIV.P 31(a)(3). Plaintiff is informed that the
Court does not have “forms” or instructions related to depositions upon written questions.
Plaintiff should review Rule 31. This motions is accordingly GRANTED IN PART.
IT IS SO ORDERED.
DATED: October 1, 2013

DONALD G. WILKERSON
United States Magistrate Judge

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