Bentz v. Hughs et al

Filing 26

ORDER DENYING WITH PREJUDICE 23 Motion for Leave to File; DENYING WITH PREJUDICE 24 Motion to Supplement;DENYING WITHOUT PREJUDICE 25 Motion for issuance of summons. Signed by Magistrate Judge Donald G. Wilkerson on 3/3/14. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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Plaintiff,
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v.
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ZIEGGER, SERGEANT DUNN, SERGEANT)
SHURZT, RICK HARRINGTON, C/O)
LINDENBERG, M. A. MINER, E. QUAND,)
J. BERDNER, C/O STEVE, J. HOOD, J.)
PHILLIP, JASON REDNOUR, and JOHN)
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DOES 1-3,
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Defendants.
DAVID ROBERT BENTZ,

Case No. 3:13-cv-1280-MJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the (First) Motion for Leave to Supplement the
Complaint (Doc. 23) the (Second) Motion for Leave to Supplement (Doc. 24), and the Motion to
Issue Summons (Doc. 25) filed by Plaintiff, David Robert Bentz. The Motions to Supplement are
DENIED WITH PREJUDICE and the Motion to Issue Summons is DENIED WITHOUT
PREJUDICE.
Plaintiff’s complaint alleges that a variety of Defendants conspired to deprive him of
adequate clothing and bedding in retaliation for filing grievances and lawsuit throughout
September, October, November, 2013. Plaintiff’s claims have been split into 9 counts alleging
claims of retaliation, state law assault and battery, excessive force, civil conspiracy, negligence,
and deliberate indifference (Doc. 9). In the First Motion for Leave to Supplement (Doc. 23),
Plaintiff seeks to add additional claims of retaliation against Defendants Shurzt, Lindenberg, and

Page 1 of 3

John Does 1-3. Plaintiff offers no details as to these additional claims of retaliation. Plaintiff
also seeks to add as Defendants Kempfer, Zang, John Doe A, and John Doe B and claims they
retaliated against him for filing lawsuits and grievances. This claim also is lacking in detail. The
Motion does not include a proposed supplemental pleading.

The Second Motion for Leave to

Supplement (Doc. 24) appears to be the actual proposed supplemental pleading. Plaintiff outlines
additional events that exhibit a conspiracy to retaliate against him for filing lawsuits/grievances
that have occurred in January, 2014.
Leave to supplement will not be granted. Federal Rule of Civil Procedure 15(a)(2)
provides that a pleading may be amended by leave of court and that “the court should give leave
when justice so requires.” Leave may be denied if “the moving party unjustifiably delayed in
presenting its motion to the court, repeatedly failed to cure deficiencies, or if the amendment
would be futile.” Gandhi v. Sitara Capital Management, LLC., 721 F.3d 865, 868-869 (7th Cir.
2013). Rule 15(d) further allows that the Court, “on just terms, permit” supplemental pleadings
that would set forth “any transaction, occurrence, or event that happened after the date of the
pleading to be supplemented.” Plaintiff does not seek to supplement – rather, he seeks to amend
the complaint in order to add new Defendants and claims that arose in January 2014. The Court
notes that this matter already alleges 9 separate counts against 12 Defendants. Adding additional
Counts and Defendants, even at this early stage in the litigation will unnecessarily complicate
these matters. The Court also notes that there could not be enough time between the events
described in the supplemental pleading and February 14, 2014 (when Plaintiff’s Motions were
filed), for Plaintiff to have grieved the events that he describes.

While exhaustion of

administrative remedies is an affirmative defense that may be waived, the Court is mindful that
Plaintiff can plead himself out of Court by alleging facts that would prove the defense. Moreover,
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Plaintiff asserts that he apparently received clothing and bedding on December 31, 2013. The
Complaint’s central theme is that Plaintiff had been denied clothing and bedding for 3 months.
The date on which he received these items (even though he didn’t receive everything that he
wanted), then, appears to be convenient terminus of his claims. These Motions (Docs. 23 and 24)
are accordingly DENIED WITH PREJUDICE.
To the extent that Plaintiff seeks to replace a John Doe Defendant with a named Defendant,
he shall file a Motion to Amend and shall submit a complete proposed amended pleading.
Plaintiff also requests the issuance of summons in this matter. The Court notes that
Waivers of Service were submitted to Defendants on January 15, 2014 and that they have not been
returned by the February 14, 2014 deadline. The Court is currently inquiring as to the status of the
waivers and will issue summons, sua sponte, if necessary. This Motion (Doc. 25) is accordingly
DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
DATED: March 3, 2014
DONALD G. WILKERSON
United States Magistrate Judge

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