Thompson v. Roeckeman et al

Filing 11

ORDER DISMISSING CASE: IT IS HEREBY ORDERED that the amended complaint (Doc. 9) is DISMISSED without prejudice, and this entire action is DISMISSED without prejudice. In the Court's discretion, this dismissal shall not count as one of Thompson's allotted strikes under 28 U.S.C. § 1915(g). Signed by Judge Nancy J. Rosenstengel on 1/21/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF ILLINOIS
DION THOMPSON,
No. M18222,

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Plaintiff,
vs.
TERRY GAY,
Defendant.

Case No. 15-cv-00551-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Dion Thompson is an inmate currently housed in Big Muddy River Correctional
Center. Pursuant to 42 U.S.C. § 1983, Thompson brings suit with respect to the conditions of his
confinement during a 30-day disciplinary period. His initial complaint was dismissed because it
failed to state a claim (see Docs. 1, 5).
Thompson’s amended complaint (Doc. 9) is now before the Court for a preliminary
review in accordance with 28 U.S.C. § 1915A. Pursuant to this statute, the Court is required to
dismiss any portion of the pleading that is legally frivolous, malicious, fails to state a claim upon
which relief may be granted, or asks for money damages from a defendant who by law is
immune from such relief. 28 U.S.C. § 1915A(b).
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if
it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic
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Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the
line between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of
the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 821 (7th Cir. 2009).
The Amended Complaint
According to the amended complaint (Doc. 9, pp. 5-6), on March 29, 2015, Thompson
received a disciplinary report from Patrick A. Hoxworth for “unauthorized movement.” He was
convicted of the charge; as discipline, Thompson was demoted to C Grade for one month, and
his day room, commissary, and gym/yard privileges were also restricted for one month.
While under disciplinary restrictions, Thompson repeatedly asked Defendant C/O Terry
Gay for permission to shower. C/O Gay denied the request, explaining that Thompson was only
allowed in the day room when he was going to get his medication or to meals. Under that strict
interpretation of the restrictions, Thompson was, in effect, confined to his cell 24 hours a day.
Furthermore, because his cell was small, and he is a self-described “big guy,” Thompson could
not exercise.
Thompson characterizes the denial of showers and exercise, and being kept in his cell 24
hours a day for 30 days, as both cruel and unusual punishment and a denial of due process. He
seeks monetary damages, as well as a preliminary injunction in the form of a general prohibition
against day room restrictions.
Discussion
The amended complaint makes clear that Thompson is attempting to pursue a claim
against a new defendant, based on an entirely different set of facts than those presented in the
original complaint. The original complaint (Doc. 1) was premised upon the issuance of a

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disciplinary report on February 24, 2015, by Tom Humerickhouse for disobeying an order
(refusing housing). Thompson was convicted of the charge; as discipline he was placed in
segregation for three days, demoted to C Grade for one month, and had his day room,
commissary, audio-visual, and gym/yard privileges restricted for one month (Doc. 1, p. 9). The
incidents at issue in the two pleadings occurred a month apart and stemmed from different doses
of discipline. There is nothing to suggest an overlap in the restrictions imposed in February and
in March. Although the 30-day restrictions imposed were virtually identical, and Thompson took
issue with the lack of showers and recreation in his original complaint, the claims are clearly
distinct from those presented in the amended complaint.
When the original complaint failed to state a colorable claim, the Court explained the
flaws and, rather than dismissing the action, allowed Thompson an opportunity to amend his
pleading. A litigant, especially one proceeding pro se, should be afforded an opportunity to
amend his complaint, “unless it is certain from the face of the complaint that any amendment
would be futile or otherwise unwarranted.” Barry Aviation Inc. v. Land O’Lakes Municipal
Airport Commission, 377 F.3d 682, 687 (7th Cir. 2004). See also Perez v. Fenoglio, 792 F.3d
768, 783 (7th Cir. 2015); Tate v. SCR Med. Transp., No. 15-1447, 2015 WL 9463188, at *2 (7th
Cir. Dec. 28, 2015). By allowing amendment, rather than dismissing the action, a second filing
fee is avoided (see 28 U.S.C. § 1915 (a) and (b)).
Federal Rule of Civil Procedure 15(a)(1) permits a party to amend its pleading once as a
matter of course. Nevertheless, that liberal rule cannot be abused or used to skirt other statutory
restrictions. Instead of curing the deficient claims, Thompson has attempted to present a second,
distinct lawsuit in a single case, thus avoiding a second filing fee. When leave to amend is

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granted, it is not an open-ended invitation to submit unrelated claims until one is successfully
pleaded.
Because Thompson is proceeding pro se, the Court will merely dismiss the amended
complaint without prejudice, so that he still has an opportunity to initiate a new action. This
action will be dismissed without prejudice, because the amended complaint illustrates that
Thompson has abandoned the claims asserted in the original complaint. If he desires to pursue
those claims (which do not appear to face an impending statute of limitations problem), he may
initiate a new action and pay an addition filing fee. Under these unusual circumstances, the Court
has no obligation to afford Thompson a second opportunity to cure the original claims. This case
will be closed.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, the amended complaint (Doc.
9) is DISMISSED without prejudice, and this entire action is DISMISSED without prejudice.
In the Court’s discretion, this dismissal shall not count as one of Thompson’s allotted “strikes”
under 28 U.S.C. § 1915(g). Judgment will be entered accordingly.
IT IS FURTHER ORDERED that the motion for service of process at government
expense (Doc. 10) is DENIED as moot.
Thompson is ADVISED that, if he wishes to appeal this dismissal, he may file a notice of
appeal with this Court within thirty (30) days of the entry of judgment. FED. R. APP. P.
4(a)(1)(A). A motion for leave to appeal in forma pauperis should set forth the issues Thompson
plans to present on appeal. See FED. R. APP. P. 24(a)(1)(C). If he does choose to appeal, he will
be liable for the $505.00 appellate filing fee irrespective of the outcome of the appeal. See FED.
R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir.

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2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133 F.3d 464
467 (7th Cir. 1998). Moreover, if the appeal is found to be non-meritorious, Thompson may also
incur another “strike.” A timely motion filed pursuant to Federal Rule of Civil Procedure 59(e)
may toll the 30-day appeal deadline. See FED. R. CIV. P. 59(e); FED. R. APP. P. 4(a)(4). A Rule
59(e) motion must be filed no more than twenty-eight (28) days after the entry of the judgment,
and this 28-day deadline cannot be extended. A Rule 60(b) motion a motion for relief from a
final judgment, order, or proceeding does not toll the deadline for an appeal.
IT IS SO ORDERED.
DATED: January 21, 2016

______________________________
NANCY J. ROSENSTENGEL
United States District Judge

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