Morris v. Lashbrook et al

Filing 37

ORDER GRANTING 18 MOTION to Amend/Correct 1 Complaint filed by Warren Morris, DENYING 27 MOTION to Appoint Counsel filed by Warren Morris, STRIKING 28 Response filed by Warren Morris, STRIKING 29 Response filed by Warren Morris , DENYING WITHOUT PREJUDICE 34 MOTION for Hearing filed by Warren Morris, and DENYING 35 MOTION for Recruitment of Counsel filed by Warren Morris. Clerk to docket amended complaint and initiate service of process for Lieutenant Walls. Signed by Magistrate Judge Donald G. Wilkerson on 2/8/17. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WARREN MORRIS,
Plaintiff,
v.
JACQUELINE
LASHBROOK
MICHAEL D. SCOTT,
Defendants.

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Case No. 3:16-cv-924-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the motion to amend filed by Plaintiff, Warren Morris,
on October 27, 2016 (Doc. 18), the motions for recruitment of counsel filed by Plaintiff on
December 2, 2016 and January 23, 2017 (Docs. 27 and 35), and the Motion for Settlement filed by
Plaintiff on January 23, 2017 (Doc. 34). The motion to amend is GRANTED, the motions for
recruitment of counsel are DENIED, and the motion for settlement conference is DENIED
WITHOUT PREJUDICE.
Federal Rule of Civil Procedure 15(a) provides that a party may amend a pleading and that
leave to amend should be freely given “when justice so requires.” The Seventh Circuit maintains
a liberal attitude toward the 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). The Circuit has recognized that “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); see also Winger v. Winger, 82 F.3d 140, 144 (7th Cir. 1996) (quoting

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Duckworth v. Franzen, 780 F.2d 645, 649 (7th Cir. 1985) (“The Federal Rules of Civil Procedure
create [a system] in which the complaint does not fix the plaintiff's rights but may be amended at
any time to conform to the evidence.”)). A court may nonetheless 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). Defendants have not respondED to the motion to amend; as such, there is no
showing of undue delay, dilatory motive or futility that would warrant denying the motion.
Pursuant to an Order entered on September 19, 2016, Plaintiff is proceeding on one count
that Defendants Scott and Lashbrook exhibited deliberate indifference to his medical needs,
namely a broken hand. Plaintiff now seeks to reinstate a count that was dismissed without
prejudice: that Lieutenant Walls used excessive force in handcuffing Plaintiff while his hand was
broken.

Plaintiff has corrected the deficiencies in this claim by specifically alleging that

Lieutenant Walls was aware that his hand was broken but nonetheless handcuffed him on March
21, 2016. Defendants have not objected. In light of the liberal amendment standard, Plaintiff
will now be proceeding on two counts:
Count 1: Defendants Lashbrook and Scott exhibited deliberate indifference to
Plaintiff’s serious medical needs when they delayed treatment for his
fractured right third metacarpal on or around March 18, 2016.
Count 2: Defendant Walls engaged in the unauthorized use of force when
requiring Plaintiff to wear handcuffs with a broken right hand on or around
March 18, 2016.
Once the amended complaint is filed, Defendants shall respond consistent with Federal Rule of
Civil Procedure Rule 12. In a related matter, Plaintiff has filed replies to the answers (Docs. 28
and 29). Federal Rule of Civil Procedure 7 does not permit such a filing absent a Court Order,
which has not been entered in this case.

As such, those replies (Docs. 28 and 29) are

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STRICKEN. Plaintiff shall not file replies to answers unless specifically directed to do so by the
Court.
Plaintiff has filed two motions (in addition to three previous motions) seeking recruitment
of counsel. Plaintiff states that he suffers from severe depression for which he is currently not
taking medication (because of other health issues) but for which he is enrolled in monthly therapy
sessions. He further states that he has received assistance from jailhouse lawyers and various
resources at the prison in order to prosecute this matter. In previous motions for recruitment of
counsel, Plaintiff did not set forth that he suffered from depression or that he was taking
medications (which he was taking at the time that he filed his previous requests for counsel) (See
Docs. 6, 7, and 17).

From Plaintiff’s filings, it is abundantly clear that he is capable of

understanding the orders of this Court and submit documents that correct deficiencies that are
noted. Again, at this time, counsel will not be recruited because Plaintiff appears capable of
prosecuting his relatively simple claims without counsel.
Finally, to the extent that Plaintiff seeks to settle this matter, he must first raise the
possibility of settlement with defense counsel. If both he and defense counsel believe that a
settlement conference would be beneficial, the Court will consider such a joint motion and set a
conference.

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CONCLUSION
For the foregoing reasons, the motion to amend filed by Plaintiff, Warren Morris, on
October 27, 2016 (Doc. 18) is GRANTED, the motions for recruitment of counsel filed by
Plaintiff on December 2, 2016 and January 23, 2017 (Docs. 27 and 35) are DENIED, and the
Motion for Settlement filed by Plaintiff on January 23, 2017 (Doc. 34) is DENIED WITHOUT
PREJUDICE.
Plaintiff shall proceed on two counts in this matter:
Count 1: Defendants Lashbrook and Scott exhibited deliberate indifference to
Plaintiff’s serious medical needs when they delayed treatment for his
fractured right third metacarpal on or around March 18, 2016.
Count 2: Defendant Walls engaged in the unauthorized use of force when
requiring Plaintiff to wear handcuffs with a broken right hand on or around
March 18, 2016.
The Clerk of Court is DIRECTED to file Plaintiff’s Amended Complaint forthwith.
The Clerk of Court is further DIRECTED to prepare for Defendant LIEUTENANT
WALLS: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2)
Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of
the complaint, and this Memorandum and Order to the Defendant’s place of employment, the
Pinckneyville Correctional Center. If Defendant Walls fails 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 Walls, and the Court will require that
Walls pay the full costs of formal service, to the extent authorized by the Federal Rules of Civil
Procedure.
If Lieutenant Walls no longer can be found at the Pinckneyville Correctional Center, the
employer shall furnish the Clerk with the Defendant’s current work address, or, if not known, the

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Defendant’s last-known address. This information shall be used only for sending the forms as
directed above or for formally effecting service. Any documentation of the address shall be
retained only by the Clerk. Address information shall not be maintained in the court file or
disclosed by the Clerk.
IT IS SO ORDERED
DATED: February 8, 2017

DONALD G. WILKERSON
United States Magistrate Judge

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