Allen v. Westfall et al

Filing 4

IT IS HEREBY ORDERED that Plaintiff's motion to withdraw complaint (Doc. 3) is GRANTED. IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file his First Amended Complaint on or before April 15, 2015. Should Plaintiff fail to file his Fi rst Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case will be dismissed. To enable Plaintiff to comply with these orders, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form and another Motion and Affidavit to Proceed in District Court Without Prepaying Fees or Costs. (Amended Pleadings due by 4/15/2015). Signed by Chief Judge Michael J. Reagan on 3/10/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RODERICK T. ALLEN,
#N-94327,
Plaintiff,
vs.
C/O WESTFALL, J. ENGELAGE,
C/O BERNER, M. HANKS, C/O HOPP,
C/O KEMPLER, C/O HOFFMAN,
and C/O REYNOLDS,
Defendants.

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Case No. 15-cv-00175-MJR

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
Plaintiff Roderick Allen is currently incarcerated at Menard Correctional Center
(“Menard”). On February 19, 2015, he filed this action pro se pursuant to 42 U.S.C. § 1983
(Doc. 1). In the complaint, Plaintiff claims that he has been subjected to unconstitutional
conditions of confinement and inadequate medical care at Menard for the past four years, in
violation of the Eighth Amendment.

In connection with these alleged constitutional

deprivations, Plaintiff sues eight Menard officials for monetary damages and injunctive relief
(Doc. 1, pp. 17-18). The complaint currently awaits review under 28 U.S.C. § 1915A.
On March 9, 2015, Plaintiff filed a motion to withdraw the complaint and submit it at a
later date (Doc. 3). The only reason offered in support of the motion is that Plaintiff named the
wrong individual as a lead defendant. This kind of error can be cured at the early pleadings stage
by filing an amended complaint. FED. R. CIV. P. 15. Although Plaintiff has not yet done so, he
seeks leave to file an amended pleading at a later date. Plaintiff’s motion shall be granted.
However, the Court cannot allow this matter to linger indefinitely. Therefore, Plaintiff shall be
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ordered to file his amended complaint on or before April 15, 2015, consistent with the
instructions below.
In addition, the Court notes that this case was opened without payment of a filing fee or
the filing of a Motion and Affidavit to Proceed in District Court Without Prepaying Fees or Costs
(“IFP motion”). On February 19, 2015, the Clerk of Court sent Plaintiff a letter (Doc. 2)
advising him that he must pay the filing fee of $400.00 or file an IFP motion within thirty (30)
days (i.e., by March 21, 2015). Included with this letter was a form IFP motion. Plaintiff was
clearly warned that failure to pay the full filing fee or to file an IFP motion before this deadline
would result in dismissal of this case (Id.). To date, Plaintiff has not tendered payment of the
$400.00 filing fee or filed an IFP motion. In order to proceed with this action, he must do one or
the other. Plaintiff’s deadline for paying the $400.00 filing fee or filing an IFP motion shall be
extended, so that it is consistent with the deadline for filing his amended complaint (on or
before April 15, 2015).
Disposition
IT IS HEREBY ORDERED that Plaintiff’s motion to withdraw complaint (Doc. 3) is
GRANTED.
IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file his
“First Amended Complaint” on or before April 15, 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 will be dismissed.

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);
28 U.S.C. § 1915A.

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When filing the First Amended Complaint, it is strongly recommended that Plaintiff use
the forms designed for use in this District for such actions.

He should label the form,

“First Amended Complaint,” and he should use the case number for this action. The pleading
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 will be severed into new cases, new case numbers will
be assigned, and additional filing fees will be assessed.
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
First Amended Complaint. The First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915A.
Plaintiff is further ORDERED to provide the Court with a filing fee of $400.00 or a
properly completed IFP motion on or before April 15, 2015. If Plaintiff files an IFP motion, the
Court must review Plaintiff’s trust fund account statement for the 6 month period immediately
preceding the filing of this action. Thus, Plaintiff must have the Trust Fund Officer at his facility
complete the attached certification and provide a copy of his trust fund account statement (or
institutional equivalent) for the period 9/1/2014 to 2/19/2015. This information should be mailed

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to the Clerk of Court at the following address: United States District Court – Southern District
of Illinois, 750 Missouri Avenue, East St. Louis, Illinois 62201.
To enable Plaintiff to comply with these orders, the Clerk is DIRECTED to mail
Plaintiff a blank civil rights complaint form and another Motion and Affidavit to Proceed in
District Court Without Prepaying Fees or Costs.
Plaintiff is also ADVISED of his continuing obligation to keep the Clerk and each
opposing party informed of any change in his address.

The Court will not independently

investigate Plaintiff’s 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 shall result in dismissal of this action for want of
prosecution and/or for failure to comply with a court order under Federal Rule of Civil
Procedure 41(b).
IT IS SO ORDERED.
DATED: March 10, 2015.
s/ MICHAEL J. REAGAN
Chief Judge

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