Diaz-Guillen v. Vieregge et al

Filing 14

ORDER GRANTING IN PART AND DENYING IN PART 12 Motion to State a Condition Claim under the Fourteenth Amendment (construed as a Motion to Amend). The Clerk of Court is directed to file Plaintiff's proposed amended complaint as the First Amended Complaint. Also, the Clerk of Court shall prepare for Defendants J.D. Vieregge, Matt McConkey, and Aaron Lay: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of Summons), and (2)Form 6 (Waiver of Service of Summons). Signed by Magistrate Judge Donald G. Wilkerson on 5/24/2016. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LUIS M. DIAZ-GUILLEN,
Plaintiff,
v.
VIPIN SHAW and JAY L. SWANSON,
Defendants.

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Case No. 3:15-cv-1101-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court is the Motion to State a Condition Claim under the
Fourteenth Amendment, construed by the Court as a Motion to Amend, filed by Plaintiff Luis M.
Diaz-Guillen (Doc. 12). For the reasons set forth below, the Motion is GRANTED IN PART
AND DENIED IN PART.
On March 2, 2016, Plaintiff filed the Motion to Amend now before the Court seeking to
add a Fourteenth Amendment conditions of confinement claim against J.D. Vieregge, the Fayette
County Jail Administrator, Brent Ellis, Chief Deputy at Fayette County Jail, Matt McConkey, a
Correctional Officer at Fayette County Jail, and Aaron Lay, Acting Sheriff at the Fayette County
Jail.

Said claim was dismissed without prejudice at threshold by District Judge Nancy J.

Rosenstengel due to Plaintiff’s failure to allege intent on the part of the named parties. Along
with his motion to amend, and in accordance with Local Rule, Plaintiff submitted his proposed
amended complaint for review. Plaintiff’s proposed amended complaint generally reiterates his
deliberate indifference claim against Defendants Dr. Shah and Dr. Swanson.
Federal Rule of Civil Procedure 15(a) states that a party may amend a pleading and leave to
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amend should be freely given “when justice so requires”. The Seventh Circuit liberally allows
amendment of pleadings “so that cases may be decided on the merits and not on the basis of
technicalities.” Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir. 1977). This Circuit
recognizes “the complaint merely serves to put the defendant on notice and is to be freely amended
or constructively amended as the case develops, as long as amendments do not unfairly surprise or
prejudice the defendant.” Toth v. USX Corp., 883 F.2d 1297, 1298 (7th Cir. 1989).

A court may

deny a party leave to amend if there is undue delay, dilatory motive or futility. Guise v. BMW
Mortgage, LLC, 377 F.3d 795, 801 (7th Cir. 2004).
The Court finds that the conditions of confinement claim set forth in Plaintiff’s proposed
amended complaint is neither unduly delayed nor futile. Importantly, Plaintiff has included
sufficient detail alleging that J.D. Vieregge, Matt McConkey, and Aaron Lay knew of the
conditions in his cell and failed to act or were otherwise reckless. However, the allegations are
insufficient to state a claim against Brent Ellis as Plaintiff merely indicates he wrote a “request to
talk to Deputy Brent Ellis but he refuse to talk to me.” This allegation is simply insufficient to
indicate that Mr. Ellis had sufficient knowledge of the conditions in Plaintiff’s cell and failed to
act.
Accordingly, Plaintiff’s Motion to Amend the Complaint (Doc. 12) is GRANTED IN
PART as to the addition of a conditions of confinement claim against defendants J.D. Vieregge,
Matt McConkey, and Aaron Lay, and DENIED IN PART as to the addition of a conditions of
confinement claim against Brent Ellis.
The Clerk of Court is DIRECTED to electronically file Plaintiff’s proposed amended
complaint as the First Amended Complaint. For clarification, the Court reiterates that the First
Amended Complaint does not state any claim against Brent Ellis.
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The Clerk of Court shall prepare for Defendants J.D. Vieregge, Matt McConkey, and
Aaron Lay: 1) Form 5 (Notice of a Lawsuit and Request to Waive Service of Summons), and (2)
Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy
of the First Amended Complaint, and this Order to Defendants’ place of employment as identified
by Plaintiff. If Defendants fail to sign and return the Waiver of Service of Summons (Form 6) to
the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to
effect formal service on Defendants, and the Court will require Defendants to pay the full costs of
formal service, to the extent authorized by the Federal Rules of Civil Procedure. Plaintiff shall
serve upon Defendants (or upon defense counsel once an appearance is entered), a copy of every
further pleading or other document submitted for consideration by the Court. Plaintiff shall
include with the original paper to be filed a certificate of service stating the date on which a true
and correct copy of any document was served on Defendant or counsel. Any paper received by a
district judge or magistrate judge that has not been filed with the Clerk or that fails to include a
certificate of service will be disregarded by the Court.
IT IS SO ORDERED.
DATED: May 24, 2016

DONALD G. WILKERSON
United States Magistrate Judge

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