Allen v. Asselmeier

Filing 97

ORDER MOOTING 87 MOTION for Extension of Time to File Response/Reply as to 61 MOTION for Summary Judgment on the Merits, as well as for Failure to Exhaust Administrative Remedies, 64 MOTION to Dismiss filed by Roderick T Allen, DENYING 88 MOTION for Extension of Time filed by Roderick T Allen, STRIKING 89 MOTION for Leave to File filed by Roderick T Allen, DENYING 92 MOTION to Amend/Correct filed by Roderick T Allen, DENYING 94 MOTION to Amend/Correc t 1 Complaint filed by Roderick T Allen, DENYING 95 MOTION to Copy filed by Roderick T Allen, DENYING 96 MOTION for Extension of Time filed by Roderick T Allen, and STRIKING 34 , 46 , 49 , 67 , 75 , 80 , 83 , 84 , and 90 . Signed by Magistrate Judge Donald G. Wilkerson on 4/19/16. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
)
Plaintiff,
)
)
v.
)
CRAIG J. ASSELMEIER and WARDEN)
)
KIMBERLY BUTLER,
)
)
Defendants
RODERICK T. ALLEN,

Case No. 3:15-cv-334-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are various Motions filed by Plaintiff: the Motion for
Extension of Time filed on March 21, 2016 (Doc. 87), the Motion for Extension of Time filed on
March 23, 2016 (Doc. 88), the Motion for Leave to File Late Reply filed on March 23, 2016 (Doc.
89), the Motion to Amend Complaint filed on April 4, 2016 (Doc. 92), the Motion for Leave to File
Second Amended Complaint filed on April 18, 2016 (Doc. 94), the Motion for Free Copy of the
Local Rules filed on April 18, 2016 (Doc. 95), and the Motion for Extensions of Time filed on
April 18, 2016 (Doc. 96).
DISCUSSION
In his first motion for extension of time, Plaintiff seeks until April 5, 2016 to respond to the
pending Motion for Summary Judgment (Doc. 61) and pending Motion to Dismiss (Doc. 64). He
also seeks until April 8, 2016 to file a reply brief in support of his claims for injunctive relief.
Since Plaintiff filed his motion, and as of the date of this Order, Plaintiff has not filed a response to
the dispositive motions but has filed a reply in support of his requests for injunctive relief (Doc.
89). Plaintiff also has filed a notice, stating that he has no mailing supplies and indicating that his

Page 1 of 6

discovery request should be served upon Defendants by the Clerk of Court through the CM/ECF
system (Doc. 90).
On February 19, 2016, this Court granted Plaintiff’s second motion for extension of time to
respond to the pending dispositive motions (Doc. 79). In that Order, Plaintiff was informed that
no further extensions of time would be granted absent extraordinary circumstances. In his current
Motion, Plaintiff states that his legal papers were confiscated on February 25, 2016 and only
partially returned on March 6, 2016 (Doc. 87). He further states that he has been having issues
with communicating with the law library and submitting documents for filing. Plaintiff appears
to have no issues, however, filing other documents, like his request for injunctive relief, various
motions, and various notices. And, as of the date of this Order, Plaintiff has not filed any
response to the pending dispositive motion. The first Motion for Extension of Time (Doc. 87) is
MOOT.
Plaintiff also requested additional time to file a reply brief in support of the requests for
injunctive relief (Doc. 88) and then filed his reply brief (Doc. 89), although it is docketed as a
motion.

Local Rule 7.1 states that reply briefs are disfavored and shall only be filed in

extraordinary circumstances. Plaintiff has not set for the any extraordinary circumstances that
would warrant the filing of a reply brief. Accordingly, the Motion (Doc. 88) is DENIED and the
Reply (Doc. 89) is STRICKEN. In addition, the two replies filed on February 23, 2016 (Doc. 80)
and March 7, 2016 (Doc. 84) are also STRICKEN.
Plaintiff also has a penchant for filing “notices” with the Court related to events at the
prison that are tangential to the claims made in this case. To the extent that Plaintiff is having
difficulty litigating this matter, he may seek relief by way of a motion – filing a notice does not
inform the Court of what Plaintiff requests and whether such a request is appropriate. The

Page 2 of 6

CM/ECF system is also not a substitute for serving papers and pleadings on opposing counsel,
especially those related to discovery. Local Rule 26.1(b) provides that discovery requests and
responses (except for requests to admit and responses thereto) shall not be filed with the Clerk of
Court (See Doc. 91). The Notices (Docs. 34, 46, 49, 67, 75, 83, and 90) are accordingly
STRICKEN.
Plaintiff also requests a copy of the Local Rules, free of charge because he cannot obtain a
copy from the law library. While Plaintiff may be indigent, he is not entitled to copies of
documents without paying the necessary copying fee. Plaintiff also has access to the Local Rules
– he merely states he cannot copy them at the prison law library. If Plaintiff wants a copy, he
must pay the copying fee first, which is $0.50 per page. Plaintiff should contact the Clerk of
Court if he wants a copy of the Local Rules and should remit the necessary copying fee.
Plaintiff seeks an extension of all deadlines in this case until May 2, 2016 because he has
other suits pending and there have been prison lockdowns. The Court has been generous in
granting extensions of time in this matter; however, that generosity must come to an end. The
Motion for Summary Judgment (Doc. 61) and the Motion to Dismiss (Doc. 64) have been pending
for over 4 months and no response has been forthcoming. Plaintiff clearly has the ability to
research and file various motions and other documents with the Court – he has apparent access to
the law library notwithstanding any lockdowns. That he has other cases pending or other matters
to attend to have no bearing of the timely filing of documents in this case. This Motion, then, is
DENIED (Doc. 96).
Finally, Plaintiff has filed two Motions to Amend the Complaint, one on April 4, 2016
(Doc. 92) and the other on April 18, 2016 (Doc. 94). Federal Rule of Civil Procedure 15(a)
provides that leave to amend should be freely given when justice so requires. Leave to amend

Page 3 of 6

may be denied, however, if there is “undue delay, bad faith, dilatory motive, repeated failure to
cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile.”
Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008). In the October 19, 2015 Scheduling
Order, the deadline for filing motions to amend was January 22, 2016 (Doc. 56). Plaintiff sought
an extension of time and the deadline was extended to February 10, 2016 (Doc. 69). Plaintiff
sought another extension of time and the deadline was extended again to March 24, 2016 (Doc.
79). Plaintiff was informed that no further extensions would be granted absent extraordinary
circumstances. Plaintiff filed his first Motion eleven days after the deadline without setting forth
what extraordinary circumstances would warrant the filing. Plaintiff also failed to show what
good cause and excusable neglect would allow for the late filing. See FED.R.CIV.P. 6(b) and
16(b)(4). Therefore, this first Motion to Amend is DENIED (Doc. 92).
In his second Motion to Amend, filed on April 18, 2016, 25 days after the deadline,
Plaintiff states that he adjusted some formatting, that the prison was on lockdown since April 1,
2016, and that he has been “overwhelmed with the amount of legal work in this case.” Such
excuses neither show good cause, excusable neglect, nor extraordinary circumstances that would
allow Plaintiff to seek leave to amend after the deadline. A lockdown that started on April 1
would not explain why Plaintiff failed to meet the March 24 deadline. To the extent that Plaintiff
is burdened by litigation, such circumstances do not warrant good cause. This is an optional
lawsuit. Plaintiff, having filed many, many suits over the years, is familiar with the burdens of
litigation and the necessity of following deadlines.

Plaintiff was aware in October, 2015 that

there was a deadline to file motions to amend; he had ample time to seek leave to amend (even
when considering the additional occurrences that he sets forth in his proposed amended pleading
that occurred in January/February, 2016).

Page 4 of 6

In any event, the Court finds that Plaintiff’s proposed amended pleading fails to state a
claim and would be futile. In addition to the deliberate indifference claim related to his teeth,
Plaintiff alleges that he has been assaulted and battered by a cellmate in January and February
2016. He goes on to allege that “on information and belief” he was being attacked because
“prison officials are attempting to force him to submit to extraction of teeth.” He further claims
that he is being retaliated against by “security staff” and that a correctional officer, C. Dumbar, has
threatened him. Finally, he states that Dr. Fahim intended to remove his vocal chords in 2009 to
prevent him from talking and that, presumably along the same vein, “prison officials” are not
treating his jaw infection in an attempt to “effectively end Plaintiff’s ability to defend himself in
Court.” Plaintiff fails to tie any of these additional allegations to Dr. Asselmeier or Warden
Butler. Plaintiff does not name any additional Defendants. These new allegations appear to be
frivolous, wholly unrelated to the deliberate indifference claim that is currently under
consideration, and are otherwise lacking in any factual support that would render them anything
more than probable. In sum, Plaintiff’s proposed pleading does not “contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation and quotation marks omitted). The Second Motion to Amend
is likewise DENIED (Doc. 94).
CONCLUSION
For the foregoing reasons, the Motion for Extension of Time filed by Plaintiff on March 21,
2016 (Doc. 87) is MOOT, the Motion for Extension of Time filed by Plaintiff on March 23, 2016
(Doc. 88) is DENIED, the Motion for Leave to File Late Reply filed by Plaintiff on March 23,
2016 (Doc. 89) is STRICKEN, the Motion to Amend Complaint filed by Plaintiff on April 4,
2016 (Doc. 92) is DENIED, the Motion for Leave to File Second Amended Complaint filed by

Page 5 of 6

Plaintiff on April 18, 2016 (Doc. 94) is DENIED, the Motion for Free Copy of the Local Rules
filed by Plaintiff on April 18, 2016 (Doc. 95) is DENIED, and the Motion for Extensions of Time
filed by Plaintiff on April 18, 2016 (Doc. 96) is DENIED.

In addition, Documents 34, 46, 49,

67, 75, 80, 83, 84, and 90 are STRICKEN
IT IS SO ORDERED.
DATED: April 19, 2016

DONALD G. WILKERSON
United States Magistrate Judge

Page 6 of 6