Cook v. Kerr 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 and for failure to state any claim upon which relief may be granted. Plaintiff is GRANTED leave to file his First Amended Complaint within thirty- five days (on or before April 3, 2015). Should Plaintiff fail to file his First Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case shall be dismissed with prejudice for failure to state a claim upon which relief may be granted. (Amended Pleadings due by 4/3/2015). Signed by Judge J. Phil Gilbert on 2/26/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DWAYNE COOK, # M-42466,

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Plaintiff,
vs.
SUSAN KERR, RANDY GROUNDS,
DEE DEE BROOKHART,
and RODERICK MATTICKS,
Defendants.

Case No. 15-cv-00070-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Dwayne Cook, who is currently incarcerated at Robinson Correctional Center
(“Robinson”), filed a pro se complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). The pleading is
now before the Court for preliminary review.

As explained in greater detail below, the

complaint violates the pleading requirements that are set forth in the Federal Rules of Civil
Procedure. For that reason, the complaint shall be dismissed without prejudice and with leave to
amend.
The Complaint
Plaintiff commenced this action by filing a complaint using this District’s standard civil
rights complaint form (Doc. 1). He failed to include a “Statement of Claim” (Doc. 1, p. 5).
Plaintiff also failed to file any other document with the complaint, in which he sets forth his
claims or the factual allegations that support them.

Instead, Plaintiff directs the Court to

“[s]ee [a]ttached [g]rievances” (Doc. 1, p. 5).
Along with the standard complaint form, Plaintiff filed an assortment of documents that
total fifty pages (Docs. 1-1, 1-2). These documents consist primarily of medical records (Doc. 1Page 1 of 7

1, pp. 2-26; Doc. 1-2, pp. 1-9). They also include inmate grievances and appeals (Doc. 1-2,
pp. 10-13; Doc. 1-2, pp. 23-24), responses (Doc. 1-1, p. 1; Doc. 1-2, pp. 15-16), letters to
attorneys (Doc. 1-2, p. 14), and witness affidavits (Doc. 1-2, pp. 17-22). Though voluminous,
the documents shed little light on Plaintiff’s actual claims against each defendant.
Perhaps it is the final two pages of the submission that best summarize Plaintiff’s claims
(Doc. 1-2, pp. 23-24). In what appears to be a letter, Plaintiff explains that he was involved in a
wheelchair accident on July 18, 2014 (Doc. 1-2, p. 23). On that date, he fell from his wheelchair
and injured his head. Medical staff at Robinson diagnosed him with a minor concussion.
However, four months later, he was still suffering from symptoms that included
“headaches, dizziness, and nausea.” Plaintiff described these symptoms to “medical staff” on
multiple occasions, but “they refuse[d] to further investigate [his] symptoms from this incident”
(Doc. 1-2, p. 23). The letter is not addressed to anyone in particular, and it is not dated.
Whether the letter describes Plaintiff’s claims against Defendants or not would be a guess. In his
request for relief, Plaintiff seeks monetary damages for “the gross negligence of the
Robinson Correctional Center” (Doc. 1, p. 6).
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

allegations

that

raise

a

right

to

relief

above

a

speculative

level.”

Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008) (emphasis in original). At the same

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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 indicates that Plaintiff is bringing this action pursuant to 42 U.S.C. § 1983.
“Section 1983 creates a federal remedy against anyone who, under color of state law, deprives
‘any citizen of the United States . . . of any rights, privileges, or immunities secured by the
Constitution and laws.’” Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State
Dept. Health, 699 F.3d 962, 972 (7th Cir. 2012) (quoting 42 U.S.C. § 1983).
Beyond designating this matter as a civil rights action, however, Plaintiff mentions no
constitutional claims. In fact, the “Statement of Claim” mentions no claims at all and includes
no factual allegations. It simply refers to exhibits (Doc. 1, p. 5). The voluminous exhibits do
little to clarify the nature of Plaintiff’s lawsuit, generally, or define the contours of his claims
against each defendant, specifically.
Given the medical records and grievances that Plaintiff filed with his complaint, it
appears that Plaintiff’s claims arise from untreated medical issues. Plaintiff seeks monetary
damages for what he characterizes as “gross negligence” (Doc. 1, p. 6). However, a defendant
can never be held liable under Section 1983 for negligence, or even gross negligence.
Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012).
This is not to say that medical claims are not cognizable under Section 1983. They are.
However, prisoners generally bring such claims under the Eighth Amendment, which prohibits
cruel and unusual punishment. The Supreme Court has recognized that “deliberate indifference
to serious medical needs of prisoners” may constitute cruel and unusual punishment under the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan, 511 U.S.

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825, 837 (1994); see Erickson v. Pardus, 551 U.S. 89, 94 (2006) (per curiam).
Deliberate indifference involves a two-part test. The plaintiff must show that: (1) the medical
condition was objectively serious; and (2) the state officials acted with deliberate indifference to
his medical needs, which is a subjective standard.

Sherrod v. Lingle, 223 F.3d 605, 619

(7th Cir. 2000). In other words, negligence does not satisfy the Eighth Amendment standard.
More is required. Farmer, 511 U.S. at 835. The prison official must act with the equivalent
state of mind of criminal recklessness. Farmer, 511 U.S. at 836-37.
In order to establish individual liability, the complaint must at least suggest that each
defendant was personally involved in the violation of Plaintiff’s constitutional rights.
Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus,
“to be liable under [Section] 1983, an individual defendant must have caused or participated in a
constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005)
(citations omitted). As a result, the doctrine of respondeat superior does not apply to actions
filed under Section 1983. See, e.g., Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008).
With this in mind, Plaintiff shall be given an opportunity to file an amended complaint,
and his original complaint 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. . . .”); Vicom, Inc. v. Harbridge Merch. Serv.,
Inc., 20 F.3d 771, 775-76 (7th Cir. 1994). Instructions for filing a “First Amended Complaint”
are set forth below.
First Amended Complaint
If Plaintiff wishes to further pursue his Eighth Amendment claim against Defendants,
Plaintiff is INSTRUCTED to file an amended complaint with this Court within 35 days of the

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date of this order (on or before April 3, 2015). Failure to follow the Court’s instructions for
doing so will result in dismissal of this action with prejudice. FED. R. CIV. P. 41(b). The Clerk
of Court is INSTRUCTED to send Plaintiff the appropriate form to submit a Section 1983
claim.
When filing his amended pleading, Plaintiff should label the pleading, “First Amended
Complaint.” He should also use this case number. He should refer to the constitutional or
statutory ground(s) for relief and include sufficient facts to demonstrate that each defendant
violated his rights—constitutional or otherwise.
As the events giving rise to this action likely occurred in July 2014 (and more recently),
Plaintiff does not appear to face any impending statute of limitation. He is, however, required to
exhaust his administrative remedies through the prison grievance procedure prior to filing a
Section 1983 action in federal court. See 42 U.S.C. § 1997e(a). Doing so may provide him with
much faster relief than an action in federal court.

If he fails to properly exhaust his

administrative remedies, the action is ultimately subject to dismissal on this basis alone.
Pending Motions
Plaintiff has filed a motion to appoint counsel (Doc. 3), which shall be held in
ABEYANCE pending the receipt of Plaintiff’s “First Amended Complaint.”
Plaintiff has also filed a motion for service of process at government expense (Doc. 4),
which is hereby DENIED. The motion is unnecessary. Service of the complaint will be
ordered, as a matter of course, on those defendants against whom Plaintiff is allowed to proceed
once threshold review of the amended pleading is completed.

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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
and for failure to state any claim upon which relief may be granted.
Plaintiff is GRANTED leave to file his “First Amended Complaint” within thirty-five
days (on or before April 3, 2015). Should Plaintiff fail to file his First Amended Complaint
within the allotted time or consistent with the instructions set forth in this Order, the entire case
shall be dismissed with prejudice for failure to state a claim upon which relief may be granted.
See FED. R. CIV. P. 41(b). See also Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson
v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915A. Further, the dismissal shall
count as one of Plaintiff’s allotted “strikes” under the provisions of 28 U.S.C. § 1915(g).
Should Plaintiff decide to file an amended complaint, it is strongly recommended that he
use the forms designed for such use in this District. He should label the form, “First Amended
Complaint,” and he should use the case number for this action. 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 each defendant’s name where necessary to identify the actors. Plaintiff should refrain
from filing unnecessary exhibits.

Plaintiff should include only related claims in his new

complaint. Claims found to be unrelated to one another 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.

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An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original complaint.
Thus, the “First Amended Complaint” must stand on its own, without reference to any previous
pleading, and Plaintiff must re-file any exhibits he wishes the Court to consider along with the
amended pleading. The “First Amended Complaint” is also subject to review pursuant to
28 U.S.C. § 1915A.
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 $350.00 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: February 26, 2015
s/J. Phil Gilbert
U.S. District Judge

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