Petty v. Duncan et al

Filing 7

IT IS HEREBY ORDERED that Plaintiff's complaint (Doc. 1 ) is DISMISSED without prejudice for non-compliance with Rule 8(a) of the Federal Rules of Civil Procedure. Plaintiff is GRANTED leave to file his amended complaint on or before Septembe r 4, 2014. Should Plaintiff fail to file an amended complaint within the allotted time, the entire action shall be dismissed, and Plaintiff may incur a strike. To enable Plaintiff to comply with this order, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form. (Amended Pleadings due by 9/4/2014). Signed by Judge J. Phil Gilbert on 7/31/2014. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARSHALL PETTY, #B-13277,
Plaintiff,
vs.
S. DUNCAN,
WARDEN TREDWAY,
C/O LEWIS, LT. BAILOR,
and ILLINOIS DEPARTMENT OF
CORRECTIONS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 14-cv-00852-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff

Marshall

Petty,

an

inmate

who

is

currently

incarcerated

at

Lawrence Correctional Center (“Lawrence”), filed a complaint (Doc. 1) that is now before the
Court for preliminary review. Included within the complaint is a request for a temporary
restraining order (Doc. 1, p. 6). As explained in greater detail below, Plaintiff’s complaint
violates the pleading requirements of the Federal Rules of Civil Procedure.

Under the

circumstances, the complaint shall be dismissed without prejudice and with leave to amend, and
Plaintiff’s request for a temporary restraining order shall be denied.
The Complaint
The complaint includes the following statement of claim, which is quoted in its entirety
herein:
I wrote to the wardens about c/o Lewis Lt Bailor I Declared him as a enemy he
kick me in Front of nurse rue They laugh I walk myself to seg because of
Lt Dallas he put me on the other side to be away from him. He Dragged me I had
a mild seizures Im afraid. c/o Lewis Do what she wants.

(Doc. 1, p. 5). Plaintiff names the Illinois Department of Corrections (“IDOC”) and four
Lawrence officials1 as Defendants (Doc. 1, pp. 1-2). Although he mentions no constitutional or
statutory basis for relief in the complaint, Plaintiff seeks a “restraining order temporary” and
compensatory damages (Doc. 1, p. 6). Along with the complaint, Plaintiff filed thirty pages of
medical records and a grievance (Doc. 1-1, pp. 1-33).
Plaintiff also filed a “Motion for Violating my 8th Amendment 14th Amendment”
(Doc. 4). In the motion, Plaintiff claims that Defendant Lewis refused to give him a non-dairy
snack bag and failed to respond when Plaintiff pushed the panic button to address issues related
to his diabetes and seizures (Doc. 4, p. 1). Plaintiff also claims that Defendant Lewis denied him
access to ADA-compliant showers. Defendants Duncan, Tredway, and IDOC allegedly ignored
Plaintiff’s grievances addressing these issues (Doc. 4, pp. 1-3).
In addition, Plaintiff filed a “Motion for Retaliation” (Doc. 5). This motion is virtually
incomprehensible. In it, Plaintiff seems to take issue with Defendant Lewis’ failure to respond to
his request for a crisis team and a clean cell (Doc. 5, pp. 1-2). He also mentions “eat[ing] half
because her” (Doc. 5, p. 1).
Legal Standard
Rule 8 of the Federal Rules of Civil Procedure dictates that a complaint must provide
“a short and plain statement of the claim showing that the pleader is entitled to relief” and also
“a demand for the relief sought.” FED. R. CIV. P. 8(a). Additionally, Rule 8(d) requires that each
allegation within the complaint “must be simple, concise, and direct.” FED. R. CIV. P. 8(d)(1).
The allegations in the complaint must “actually suggest that the plaintiff has a right to relief, by
providing
1

allegations

that

raise

a

right

to

relief

above

a

speculative

level.”

The four Lawrence officials include Defendants Duncan (warden), Tredway (warden), Lewis
(correctional officer), and Bailor (lieutenant).

Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (emphasis in original). At the same
time, however, the factual allegations of a pro se complaint are to be liberally construed.
See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Discussion
The complaint clearly violates Rule 8 of the Federal Rules of Civil Procedure.
Although Rule 8 requires a complaint to contain “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Plaintiff’s pleading is too short and unclear to
satisfy this standard. FED. R. CIV. P. 8(a). The statement of claim does not plead “enough facts
to state a claim to relief that is plausible on its face.”

Bell Atlantic Corp. v. Twombly,

590 U.S. 544, 570 (2007).
A complaint is plausible on its face “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Although the Court is obligated to accept
factual allegations as true, some factual allegations may be so sketchy or implausible that they
fail to provide sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578 F.3d 574, 581
(7th Cir. 2009). The allegations in the complaint are far too sketchy. Although Defendants are
generally identified in the case caption, the two-sentence statement of claim fails to link
particular Defendants to specific acts or omissions. The complaint instead strings together
names of Defendants without stating what each Defendant did to violate Plaintiff’s rights,
without identifying the rights that were violated, and without offering a timeframe for the alleged
violations. The Court and Defendants are left to guess who did what—and when.

Further, the Court and Defendants must guess what constitutional or statutory basis for
relief exists. The complaint mentions none. Even so, Plaintiff seeks a temporary restraining
order and monetary damages.
Plaintiff instead appears to rely on two motions he filed at the same time as the complaint
to state claims against Defendants, including a “Motion for Violating my 8th Amendment 14th
Amendment” (Doc. 4) and a “Motion for Retaliation” (Doc. 5). The allegations set forth therein
are not considered part of the complaint. Even if they were, Plaintiff would fare no better.
The allegations are largely unintelligible. Like the complaint, the allegations in both motions fail
to connect particular Defendants with specific constitutional or statutory violations.
Finally, the exhibits to the complaint appear to be entirely unrelated to Plaintiff’s claims.
The complaint alludes to a Defendant kicking and dragging Plaintiff and prompting him to seek
protective custody. The exhibits consist of 30 pages of medical records and a 3-page grievance.
Neither the medical records nor the grievance mentions the kicking or dragging incident.
By all indications, the exhibit is superfluous.
Plaintiff’s style of pleading prevents the Court from conducting orderly litigation, as it is
required to do.

See Vicom, Inc. v. Harbridge Merch. Serv., Inc., 20 F.3d 771, 775-76

(7th Cir. 1994). It also robs Defendants of any fair notice of the actions that are alleged to be
illegal or who was personally involved in each wrongdoing. Jenning v. Emry, 910 F.2d 1434,
1436 (7th Cir. 1990). Defendants cannot respond to this type of pleading.
Further, it appears that Plaintiff may have attempted to bring unrelated claims in a single
case. On the one hand, Plaintiff seems to challenge the actions of Defendant Lewis in denying
Plaintiff a non-dairy snack bag and failing to respond to his calls for help. On the other hand,
Plaintiff appears to bring an unrelated excessive force claim against Defendant Bailor.

The Seventh Circuit has made it clear that “[u]nrelated claims against different
defendants belong in different suits.” See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007);
FED. R. CIV. P. 20(a)(2). This is, in part, to prevent prisoners from dodging filing fees or the
three strikes provision in the Prison Litigation Reform Act.

George, 507 F.3d at 607.

Specifically, Rule 18(a) provides that “[a] party asserting a claim, counterclaim, crossclaim, or
third-party claim may join, as independent or alternate claims, as many claims as it has against
an opposing party.” FED. R. CIV. P. 18(a). Under Rule 20(a)(2), defendants may be joined in one
action only if the Plaintiff asserts a “right to relief . . . against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or series of
transactions or occurrences” and “any question of law or fact common to all defendants will arise
in the action.” FED. R. CIV. P. 20(a)(2). Thus, under these rules, “multiple claims against a
single party are fine, but Claim A against Defendant 1 should not be joined with unrelated
Claim B against Defendant 2.” George, 507 F.3d at 607.
Because Plaintiff’s complaint is too vague and poorly drafted for either the Court or
Defendants to decipher, it shall be dismissed without prejudice. Lindell v. McCallum, 352 F.3d
1107, 1110 (7th Cir. 2003) (“If a complaint’s length and lack of clarity make it unintelligible,
dismissal under Fed. R. Civ. P. 8(a) is permitted. . . .”); Flayter v. Wisconsin Dep’t of Corr.,
16 F. App’x 507, 509 (7th Cir. 2001) (“A prolix and confusing complaint should be dismissed
because it makes it difficult for the defendant to file a responsive pleading and for the court to
conduct orderly litigation.”), citing Vicom, Inc., 20 F.3d at 775-76.
However, Plaintiff shall be granted leave to file an amended complaint. When doing so,
Plaintiff should identify the pleading as the “First Amended Complaint” and use this case
number to identify the pleading at the time of filing. Plaintiff should present each claim in a

separate count. He should specify by name each Defendant alleged to be liable under the count.
Plaintiff should be careful to include sufficient facts to demonstrate that each Defendant violated
his rights—constitutional or otherwise. Whenever possible, he should also include the date of
the alleged act or omission. Plaintiff should indicate whether he is bringing this action pursuant
to § 1983 or some other law. Plaintiff must refrain from filing unnecessary exhibits and refer to
any exhibits in the body of the complaint, where it is possible to do so. He must also bring
separate, unrelated claims in separate actions and be aware of the fact that the Court will sever
such claims into separate actions. Plaintiff shall be responsible for payment of another filing fee
for any severed case.
It is important to note that the events giving rise to Plaintiff’s claims appear to have
occurred in 2013 and 2014. With this in mind, the Court finds that dismissal of this lawsuit
without prejudice and with leave to amend does not prejudice Plaintiff by placing him in a
materially different position with regard to an impending statute of limitations deadline.
However, Plaintiff should be mindful of the applicable two-year statute of limitations for claims
brought pursuant to § 1983 when deciding whether to file a new lawsuit.
Request for Temporary Restraining Order
In the complaint, Plaintiff seeks a “restraining order temporary,” which the Court
construes as a request for a temporary restraining order (“TRO”) (Doc. 1, p. 6). In order to
obtain preliminary injunctive relief, whether through a temporary restraining order or a
preliminary injunction, Plaintiff must demonstrate that: (1) his underlying case has some
likelihood of success on the merits; (2) no adequate remedy at law exists, and; (3) Plaintiff will
suffer irreparable harm without the injunction.

Woods v. Buss, 496 F.3d 620, 622

(7th Cir. 2007). If those three factors are shown, the district court must then balance the harm to

each party and to the public interest from granting or denying the injunction.
Id.; Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Cooper v. Salazar, 196 F.3d 809, 813
(7th Cir. 1999). Because the pleadings are, in their current form, unintelligible, the Court simply
cannot assess these factors. Accordingly, the request for a TRO shall be DENIED without
prejudice to Plaintiff filing a separate motion for TRO at the same time he files the
First Amended Complaint, or any time it becomes necessary to do so thereafter.
Motion for Leave to Proceed In Form Pauperis
Plaintiff has filed a motion for leave to proceed in forma pauperis (Doc. 2), which shall
be addressed in a separate Order of this Court.
Motion for Recruitment of Counsel
Plaintiff has filed a motion for recruitment of counsel (Doc. 3), which shall be held in
ABEYANCE pending the receipt of Plaintiff’s First Amended Complaint.
Motion for Violating My 8th Amendment 14th Amendment
Plaintiff has also filed a motion entitled “Motion for Violating My 8th Amendment 14th
Amendment” (Doc. 4), which is DENIED for the reasons previously discussed. Any allegations
set forth therein in support of Plaintiff’s claims should be included in his First Amended
Complaint.
Motion for Retaliation
Finally, Plaintiff has filed a “Motion for Retaliation” (Doc. 5), which is DENIED for the
reasons discussed above. Any allegations set forth in this motion that support Plaintiff’s claims
should be included in his First Amended Complaint.

Disposition
IT IS HEREBY ORDERED that Plaintiff’s complaint (Doc. 1) is DISMISSED
without prejudice for non-compliance with Rule 8(a) of the Federal Rules of Civil Procedure.
Plaintiff is GRANTED leave to file his amended complaint on or before September 4, 2014.
Should Plaintiff fail to file an amended complaint within the allotted time, the entire action shall
be dismissed, and Plaintiff may incur a “strike.” See 28 U.S.C. § 1915(g); FED. R. CIV. P. 41(b).
See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34
F.3d 466 (7th Cir. 1994).
Should Plaintiff decide to file an amended complaint, it is strongly recommended that he
use the forms designed for use in this District for such actions. He should label the pleading
“First Amended Complaint” and use this case number. The amended complaint shall present
each claim in a separate count, and each count shall specify, by name, each defendant alleged to
be liable under the count, as well as the actions alleged to have been taken by that Defendant.
Plaintiff should attempt to include the facts of his case in chronological order, inserting
Defendants’ names where necessary to identify the actors and the dates of any material acts or
omissions. Plaintiff should refrain from filing unnecessary exhibits. Plaintiff should include
only related claims in his new complaint. Claims found to be unrelated will be severed into new
cases, new case numbers will be assigned, and additional filing fees will be assessed. To enable
Plaintiff to comply with this order, the Clerk is DIRECTED to mail Plaintiff a blank civil rights
complaint form.

Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350.002 remains due and payable,
regardless of whether Plaintiff elects to file an amended complaint. See 28 U.S.C. § 1915(b)(1);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of 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 31, 2014
s/ J. Phil Gilbert
U.S. District Judge

2

If Plaintiff’s pending motion for leave to proceed in forma pauperis (Doc. 2) is denied, an additional
administrative fee of $50.00 will be assessed, and he will be obligated to pay a total fee of $400.00 for
this action.