Owens v. Allen et al
Filing
27
ORDER GRANTING IN PART AND DENYING IN PART 26 MOTION to Amend/Correct 14 Amended Complaint filed by James Owens. The Clerk of Court is DIRECTED to file Plaintiff's proposed amended complaint as the Second Amended Complaint. The Clerk of Court shall prepare for Defendant Sandra Funk: (1) Form 5 (Notice of a Lawsuit and Reqeust to Waive Service of Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Magistrate Judge Donald G. Wilkerson on 9/22/2015. (nms)
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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KIMBERLY BUTLER, and JOHN DOE #3, )
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Defendants.
JAMES OWENS,
Case No. 3:14-cv-55-JPG-DGW
ORDER
WILKERSON, Magistrate Judge:
Before the Court is Plaintiff’s Request for Acceptance of Amended Complaint, construed
as a Motion to Amend the Complaint, filed on August 5, 2015 (Doc. 26). For the reasons set forth
below, Plaintiff’s Motion is GRANTED IN PART AND DENIED IN PART.
In his Motion to Amend, Plaintiff explains that pursuant to this Court’s screening order
(Doc. 16), he was ordered to identify and serve John Doe #3. Plaintiff indicates that he has
identified this defendant and asks that the Court file his Second Amended Complaint and issue
summons to Sandra Funk.
Federal Rule of Civil Procedure 15(a) states that a party may amend a pleading and leave to
amend should be freely given “when justice so requires”. The Seventh Circuit liberally allows
amendment of pleadings “so that cases may be decided on the merits and not on the basis of
technicalities.” Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir. 1977). This Circuit
recognizes “the complaint merely serves to put the defendant on notice and is to be freely amended
or constructively amended as the case develops, as long as amendments do not unfairly surprise or
prejudice the defendant.” Toth v. USX Corp., 883 F.2d 1297, 1298 (7th Cir. 1989).
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A court may
deny a party leave to amend if there is undue delay, dilatory motive or futility. Guise v. BMW
Mortgage, LLC, 377 F.3d 795, 801 (7th Cir. 2004).
In his proposed second amended complaint, Plaintiff has indeed identified the transfer
coordinator, John Doe #3, who he alleges transferred Plaintiff to Menard in violation of the Eighth
Amendment. Insofar as Plaintiff’s proposed second amended complaint seeks to identify this
defendant, his motion is GRANTED.
However, Plaintiff has included allegations against
numerous other defendants, including many John/Jane Doe defendants that the Court dismissed
without prejudice in its screening order.
Plaintiff has not provided additional details or
allegations to support these additional claims; as such, insofar as his proposed second amended
complaint sets forth allegations against individuals other than Sandra Funk, his request to amend is
DENIED. Accordingly, the Clerk of Court is DIRECTED to file Plaintiff’s proposed amended
complaint as his Second Amended Complaint. Allegations not related to Plaintiff’s claim against
Sandra Funk are hereby STRICKEN.
The Clerk of Court shall prepare for Defendant Sandra Funk: (1) Form 5 (Notice of a
Lawsuit and Request to Waive Service of Summons), and (2) Form 6 (Waiver of Service of
Summons). The Clerk is DIRECTED to mail these forms, a copy of the Second Amended
Complaint, and this Order to Defendant’s place of employment as identified by Plaintiff. If
Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within
30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect formal
service on Defendant, and the Court will require Defendant to pay the full costs of formal service,
to the extent authorized by the Federal Rules of Civil Procedure. Plaintiff shall serve upon
Defendant (or upon defense counsel once an appearance is entered), a copy of every further
pleading or other document submitted for consideration by the Court. Plaintiff shall include with
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the original paper to be filed a certificate stating the date on which a true and correct copy of any
document was served on Defendant or counsel. Any paper received by a district judge or
magistrate judge that has not been filed with the Clerk or that fails to include a certificate of service
will be disregarded by the Court.
IT IS SO ORDERED.
DATED: September 22, 2015
DONALD G. WILKERSON
United States Magistrate Judge
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