Wells v. Butler et al

Filing 8

IT IS HEREBY ORDERED that Counts 1-3 are DISMISSED with prejudice as frivolous claims. Counts 4 and 5 are DISMISSED without prejudice for failure to state a claim upon which relief can be granted. Defendants Butler, Scott, Cowan, Godinez, and McCarty are DISMISSED with prejudice. Defendants Pfister, Brown, and Salinas are DISMISSED without prejudice. As no claims remain, the Complaint is DISMISSED without prejudice at this time. IT IS FURTHER ORDERED that, should he wish to proceed with this case, plaintiff shall file his first amended complaint, stating any facts which may exist to support Count 4 and/or Count 5, on or before May 12, 2017. (Amended Pleadings due by 5/12/2017). Signed by Judge David R. Herndon on 4/12/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SAM WELLS,
Plaintiff,
vs.

Case No. 17 cv–029 DRH

KIMBERLY S. BUTLER,
MINH T. SCOTT,
REBECCA COWAN,
RANDY S. PFISTER,
CHAD M. BROWN,
ABERARDO SALINAS,
SALVADOR A. GODINEZ, and
LESLIE MCCARTY
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Sam Wells, an inmate in Hill Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 for
events that happened at Menard Correctional Center and Pontiac Correctional
Center. Plaintiff requests monetary damages. This case is now before the Court
for a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A, which
provides:
(a) Screening – The court shall review, before docketing, if feasible
or, in any event, as soon as practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.

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(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim
on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
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 any reasonable person would find
meritless. 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 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).
Upon careful review of the complaint and any supporting exhibits, the
Court finds it appropriate to exercise its authority under § 1915A; this action is
subject to summary dismissal.
The Complaint
While incarcerated at Menard Correctional Center, plaintiff was placed on
investigative status on March 28, 2014.

(Doc. 1-1, p. 3).

On April 22, 2014

plaintiff was served with an inmate disciplinary report for participation in a
security threat group (“STG”). (Doc. 1, p. 8) (Doc. 1-1, pp 5-6). Plaintiff was put

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on temporary confinement, and his adjustment committee hearing was delayed
until May 8, 2014. (Doc. 1, p. 8). At that time, plaintiff was served with another
disciplinary report dated May 8, 2014, although that report referenced the same
subject as the April 22, 2014 report. (Doc. 1-1, pp. 8-9). The second disciplinary
report was written at the behest of the Chief Administrative Officer, Kimberly
Butler. (Doc. 1, p. 8). She directed that the report be revised in order to include
additional information to substantiate the charge against plaintiff. (Doc. 1-1, p.
16). She also directed the adjustment committee to impose discipline of 1 year
segregation, 1 year C-grade, and LOC. Id. Plaintiff alleges that this instruction
violated the Illinois Administrative Code, specifically the section that prohibits the
CAO from influencing an adjustment committee decision. (Doc. 1, p. 8). Plaintiff
also alleges that Butler improperly increased his sanction, although the
Complaint explicitly states that he was denied a hearing until after Butler
remanded the initial disciplinary report and the exhibits submitted in support of
the complaint do not show that an initial disciplinary hearing was performed or
that discipline was imposed prior to the 1 year punishment. (Doc. 1, pp. 8-10).
Minh Scott and Rebecca Cowan imposed the sanction recommended by
Butler in violation of the Illinois Administrative Code. (Doc. 1, p. 9). Plaintiff
filed grievances contesting the alleged arbitrary acts by Butler, Scott, and Cowan.
Id. On October 20, 2014, the Administrative Review Board (“ARB”), specifically
McCarty and Godinez, remanded the ticket back to Menard so that the reporting
officer could provide additional information to substantiate the charge and

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directed Pontiac to rehear the ticket. Id. However, the remand order failed to
address the allegedly improper 9 month sanction increase recommended by
Butler.

Plaintiff alleges that Godinez and McCarty violated the Illinois

Administrative Code by failing to address this point. (Doc. 1, p. 10). Plaintiff
further alleges that Godinez and McCarty were deliberately indifferent to the 4
months that plaintiff had already spent in segregation past the 3 months he
should have received. Id.
Plaintiff was not reissued a new disciplinary ticket until approximately 3
months after the remand from the ARB. (Doc. 1-1, p. 21). The January 20, 2015
report was substantially the same as the April 22, 2014 and the May 8, 2014
reports. (Doc. 1, p. 11). On January 22, 2015, plaintiff appeared before the
Pontiac Correctional Center Adjustment Committee, composed of Chad Brown
and Aberarado Salinas. Id. The Pontiac Committee again found plaintiff guilty
and sanctioned him to 1 year of segregation, despite the fact that plaintiff
explained how Butler had violated the administrative code. Id. Plaintiff alleges
that Brown, Salinas, and Pfister also violated the Illinois Administrative Code
when they failed to act to reverse Butler’s wrongful act. Id. Plaintiff alleges that
Brown, Salinas, and Pfister retaliated against him because of letters, request
slips, and grievance that plaintiff had filed. Id.
Plaintiff was released from segregation on March 27, 2015. (Doc. 1, p. 12).
On April 27, 2015, the ARB issued a decision that the sanction increase from 3
months to 1 year violated the Illinois Administrative Code, and directed prison

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administrators to reduce Plaintiff’s punishment to 3 months. Id. However, by
this time, plaintiff had already served the full year at Pontiac Correctional Center.
Id. Plaintiff alleges that the extra 273 days he had to spend in segregation posed
an atypical and significant hardship in relation to prison life in general
population. Id. Specifically he alleges that while in general population, he had a
job assignment and access to vocational classes, religious services, school,
recreation, activities, and other support programs. Id. He also received 5 contact
visits per month, daily telephone access, 3 showers per week, and 8 hours of
recreation per week. Id. In contrast, in disciplinary segregation, plaintiff was
confined to his cell 24 hours a day. Id. He received no telephone privileges, only
2 non-contact visits per month, 1 shower per week, 4 hours of recreation per
week, and no support or recreational programing. Id. Plaintiff was also subject
to restrictions on what property he could keep in his cell or purchase at the
commissary. Id.
Discussion
Based on the allegations of the complaint, the Court finds it convenient to
divide the pro se action into 5 counts. The parties and the Court will use these
designations in all future pleadings and orders, unless otherwise directed by a
judicial officer of this Court. All claims must be dismissed at this time:
Count 1 – Defendants Butler, Scott, and Cowan, violated plaintiff’s
due process rights in violation of the Fourteenth Amendment when
they failed to follow the Illinois Administrative Code when Butler
directed Scott and Cowan to impose a certain sentence on plaintiff;

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Count 2 – Defendants Brown, Salinas, and Pfister violated plaintiff’s
due process rights under the Fourteenth Amendment when they
disregarded the Illinois Administrative Code and re-imposed the 1
year sanction on plaintiff upon rehearing;
Count 3 – Defendants Godinez and McCarty violated plaintiff’s due
process rights under the Fourteenth Amendment when they
responded to plaintiff’s grievance without immediately addressing the
9 month sanction increase that allegedly violated the Illinois
Administrative Code and failed to order plaintiff’s immediate release
from segregation;
Count 4 – Defendant Randy Pfister was deliberately indifferent to the
unconstitutional conditions of confinement at Pontiac Correctional
Center in violation of the Eighth Amendment;
Count 5 – Defendants Brown, Salinas, and Pfister retaliated against
plaintiff by disregarding the Illinois Administrative Code’s prohibition
on increasing a sanction when they reheard plaintiff’s disciplinary
ticket on remand in response to plaintiff’s grievances, letters, and
other requests.
As to Count 1 and Count 2, when a plaintiff brings an action under § 1983
for procedural due process violations, he must show that the state deprived him
of a constitutionally protected interest in “life, liberty, or property” without due
process of law.

Zinermon v. Burch, 494 U.S. 113, 125 (1990). The Seventh

Circuit has limited the ability of prisoners to assert that terms in segregation
implicate a liberty interest. Marion v. Columbia Corr. Inst., 559 F.3d 693, 697
(7th Cir. 2009). Whether a prisoner has a liberty interest implicated by special
confinement relies on whether the confinement imposed an “atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison
life.”

Sandin v. Conner, 515 U.S. 472, 484 (1995).

In assessing whether

disciplinary segregation amounts to a constitutional violation, a court must
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examine the length of a prisoner’s confinement in segregation in combination with
the conditions he endured there. Kervin v. Barnes, 787 F.3d 833, 836-37 (7th
Cir. 2015); Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013). Although
relatively short terms of segregation rarely give rise to a prisoner's liberty interest,
at least in the absence of exceptionally harsh conditions, such an interest may
arise from a term of confinement combined with atypical and significant
hardships, depending on the severity of the conditions, and any additional
punishments. Kervin, 787 F.3d at 836.
Prison disciplinary hearings satisfy procedural due process requirements
where an inmate is provided: (1) written notice of the charge against him twenty
four (24) hours prior to the hearing; (2) the right to appear in person before an
impartial

body;

(3)

the

right

to

call

witnesses

and

to

present

physical/documentary evidence, but only when doing so will not unduly jeopardize
the safety of the institution or correctional goals; and (4) a written statement of
the reasons for the action taken against the prisoner. See Wolff v. McDonnell,
418 U.S. 539, 563-69 (1974); Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988).
Not only must the requirements of Wolff be satisfied, but the decision of the
disciplinary hearing board must be supported by “some evidence.”

Black v.

Lane, 22 F.3d 1395, 1402 (7th Cir. 1994). To determine whether this standard
has been met, courts must determine whether the decision of the hearing board
has some factual basis. Webb v. Anderson, 224 F.3d 649 (7th Cir. 2000). Even a

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meager amount of supporting evidence is sufficient to satisfy this inquiry.
Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007).
Plaintiff alleges that he was confined in segregation for a full 12 months,
and that 9 of those months were later determined by the ARB to violate the Illinois
Administrative Code. However, the Court finds that plaintiff has failed to allege
that he was deprived of a liberty interest or that the hearing deprived him of his
procedural due process.
First, plaintiff’s claims do not establish that he was deprived of a liberty
interest as a matter of law. Plaintiff alleges that he served 9 months more in
segregation than he should have. Nine months is a sufficient amount of time to
trigger inquiry into the conditions of confinement that plaintiff endured, but all
plaintiff has alleged is that segregation has much fewer privileges and educational
opportunities than general population. That is not the relevant standard. If all a
prisoner needed to allege was that conditions in segregation had fewer privileges
than general population, then any stint in segregation would state a due process
claim—a position which the Supreme Court has rejected. Sandin v. Conner, 515
U.S. 472, 485 (1995) (rejecting rule that solitary confinement automatically
triggers due process protection, and requiring a prisoner to show that the
segregation presents “atypical, significant deprivations”). Plaintiff’s allegations the
he was subject to “atypical, significant deprivations” are conclusory and
implausible.

He has not alleged that he was exposed to any unconstitutional

conditions of confinement, a point which the Court will address in further detail

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below. He has also not alleged that he actually suffered any harm, mentally 1 or
physically as a result of his extended stint in segregation. The loss of privileges
that plaintiff experienced are typical incidents of prison life; nothing in his
complaint suggests that they were “atypical.”

For these reasons, plaintiff’s

complaint does not adequately allege that he was deprived of a liberty interest.
Even if he had, his claim would still fail because the complaint does not
show that plaintiff was deprived of due process. First, plaintiff repeatedly states
that the defendants violated the applicable Illinois Administrative Code
provisions, both in the timing of the May 8 hearing and in the manner in which
his 1 year sentence was imposed. Indeed, it appears that these deficiencies were
the reason why the ARB ultimately ruled in plaintiff's favor and rescinded the
additional 9 months of segregation. An administrative code violation, however,
does not translate into a constitutional violation upon which a civil rights claim
may rest. A federal court does not enforce state law and regulations. Archie v.
City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988) (en banc), cert. denied, 489
U.S. 1065 (1989); Pasiewicz v. Lake Cnty. Forest Preserve Dist., 270 F.3d 520,
526 (7th Cir. 2001). Therefore, the failure to follow the Illinois Administrative
Code does not establish a Fourteenth Amendment due process claim.
Secondly, Wolff delineates the nature of due process protections that a
prisoner is due, and plaintiff’s complaint fails to allege that he was deprived of

An inmate cannot recover compensatory damages for mental harms without a physical
injury under the Prison Litigation Reform Act, but as that provision is not grounds for dismissal of
an otherwise valid constitutional claim, the Court only mentions it in passing.
1

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any of the Wolff protections.

Plaintiff’s complaint establishes that he received

written notice of the charges against him prior to the hearing, that he appeared
before the adjustment committee in person and was permitted to submit a
statement, and that he received a written record of the adjustment committee
findings. Plaintiff has not alleged that he was deprived of due process as to either
the Menard or Pontiac disciplinary hearing.

The main problem that plaintiff

repeatedly returns to was that Butler directed the Menard adjustment committee
to impose a certain sentence and that no one who subsequently reviewed the
discipline overturned it, but plaintiff alleges that action violates the Illinois
Administrative Code, not Wolff. For the above reasons, Counts 1 and 2 must be
dismissed with prejudice at this time because they are frivolous.
Count 3 must also be dismissed with prejudice.

Plaintiff alleges that

Godinez and McCarty failed to adequately respond to his grievance because they
ordered his disciplinary ticket reheard instead of ordering his immediate release.
The grievance procedure is not constitutionally mandated, and any mishandling
or oversight in the adjudication of a grievance will not support a § 1983 claim.
See Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Maust v.
Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091,
1100-01 (7th Cir. 1982).

Plaintiff’s claim that Godinez and McCarty failed to

respond to his grievances in the manner that plaintiff would have preferred is
foreclosed by the relevant case law.

Although some recent cases suggest that

grievances may be adequate to put defendants on notice of a serious risk for the

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purposes of a deliberate indifference claim, that line of reasoning has not been
extended to cases alleging due process violations. Count 3 will be dismissed as
frivolous.
Count 4 shall be dismissed without prejudice for failure to state a claim
upon which relief can be granted. The Eighth Amendment prohibiting cruel and
unusual punishment is applicable to the states through the Fourteenth
Amendment.

It has been a means of improving prison conditions that were

constitutionally unacceptable. See, e.g., Robinson v. California, 370 U.S. 660,
666 (1962); Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir. 1994).

As the

Supreme Court noted in Rhodes v. Chapman, 452 U.S. 337, 346 (1981), the
amendment reaches beyond barbarous physical punishment to prohibit the
unnecessary

and

wanton

infliction

of

pain

and

punishment

grossly

disproportionate to the severity of the crime. Id, (quoting Gregg v. Georgia, 428
U.S. 153, 173 (1976)). The Constitution also prohibits punishment that is totally
without penological justification. Gregg, 428 U.S. at 183.
Not all prison conditions trigger Eighth Amendment scrutiny – only
deprivations of basic human needs like food, medical care, sanitation, and
physical safety. Rhodes, 452 U.S. at 346; see also James v. Milwaukee Cnty.,
956 F.2d 696, 699 (7th Cir. 1992).

In order to prevail on a conditions of

confinement claim, a plaintiff must allege facts that, if true, would satisfy the
objective and subjective components applicable to all Eighth Amendment claims.
McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994); see also Wilson v. Seiter, 501

11

U.S. 294, 302 (1991). The objective component focuses on the nature of the acts
or practices alleged to constitute cruel and unusual punishment.

Jackson v.

Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). The objective analysis examines
whether the conditions of confinement exceeded contemporary bounds of decency
of a mature civilized society. Id. The condition must result in unquestioned and
serious deprivations of basic human needs or deprive inmates of the minimal
civilized measure of life’s necessities. Rhodes v. Chapman, 452 U.S. 337, 347
(1981); accord Jamison-Bey v. Thieret, 867 F.2d 1046, 1048 (7th Cir. 1989);
Meriwether v. Faulkner, 821 F.2d 408, 416 (7th Cir. 1987).
In addition to showing objectively serious conditions, a plaintiff must also
demonstrate the subjective component to an Eighth Amendment claim.

The

subjective component of unconstitutional punishment is the intent with which the
acts or practices constituting the alleged punishment are inflicted. Jackson, 955
F.2d at 22.

The subjective component requires that a prison official had a

sufficiently culpable state of mind. Wilson, 501 U.S. at 298; see also McNeil v.
Lane, 16 F.3d 123, 124 (7th Cir. 1994). In conditions of confinement cases, the
relevant state of mind is deliberate indifference to inmate health or safety; the
official must be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he also must draw the inference.
See, e.g., Farmer v. Brennan, 511 U.S. 825, 837 (1994); Wilson, 501 U.S. at
303; Estelle v. Gamble, 429 U.S. 97, 104 (1976); DelRaine v. Williford, 32 F.3d
1024, 1032 (7th Cir. 1994). The deliberate indifference standard is satisfied if

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the plaintiff shows that the prison official acted or failed to act despite the
official’s knowledge of a substantial risk of serious harm. Farmer, 511 U.S. at
842. A failure of prison officials to act in such circumstances suggests that the
officials actually want the prisoner to suffer the harm. Jackson v. Duckworth,
955 F.2d 21, 22 (7th Cir. 1992). It is well-settled that mere negligence is not
enough. See, e.g., Davidson v. Cannon, 474 U.S. 344, 347-48 (1986).
Here, plaintiff has not alleged that he was deprived of life’s necessities, or
that he was subjected to a risk of serious harm. In fact, he has not alleged that he
suffered any harm at all. Plaintiff has alleged that he was deprived of certain
privileges and opportunities of the general population section. But plaintiff has
no constitutional right to those privileges and opportunities, provided his basic
necessities are being met. The purpose of segregation is often punitive, and it
takes its character from the attendant loss of privileges and opportunities. The
loss of privileges standing alone does not state a conditions of confinement claim.
And even if it did, plaintiff has not alleged that Pfister had the requisite subjective
state of mind. He has not alleged that he took any steps to put Pfister on notice of
his complaints regarding the conditions at Pontiac. Plaintiff’s Count 4 thus fails
to adequately allege both the objective and subjective component. Count 4 will be
dismissed without prejudice for failure to state a claim upon which relief can be
granted.
As to Plaintiff’s Count 5, to succeed on a First Amendment Retaliation
claim, a plaintiff must prove 1) that he engaged in conduct protected by the First

13

Amendment; 2) that he suffered a deprivation that would likely deter First
Amendment activity in the future; and 3) that the protected conduct was a
“motivating factor” for taking the retaliatory action. Bridges v. Gilbert, 557 F.3d
541, 546 (7th Cir. 2009).

In the prison context, where an inmate is alleging

retaliation, it is not enough to simply state the cause of action. The inmate must
identify the reasons that retaliation has been taken, as well as “the act or acts
claimed to have constituted retaliation,” so as to put those charged with the
retaliation on notice of the claim(s). Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.
2002). The inmate need not plead facts to establish the claim beyond doubt, but
need only provide the bare essentials of the claim, and in a claim for retaliation
the reason for the retaliation and the acts taken in an effort to retaliate suffice. Id.
Here, plaintiff’s allegations are not plausible. Although plaintiff has used
the words “retaliation” and “retaliatory” throughout the complaint, there is only
one instance where he alleges that he actually engaged in protected conduct.
Plaintiff alleges that the Pontiac defendants reinstated his previous sanction
because he filed grievances, letters, and complaints.

But this allegation is

conclusory. Plaintiff has not even alleged that the defendants knew that he filed
grievances, letters, or complaints, much less that he directed any such
correspondence to Brown, Salinas, or Pfister personally. Further, the complaint
is explicit that Brown, Salinas, and Pfister conducted another disciplinary hearing
at the behest of the ARB. To accept plaintiff’s complaint is to accept the dubious
proposition that the Pontiac defendants both wanted to “get” plaintiff and were

14

also content wait for a third party to provide them with the opportunity. Plaintiff
has also failed to allege that re-imposing a sanction previously imposed is the
kind of activity that would deter a reasonable person from engaging in protected
activity or that he was deterred from engaging in protected activity. The Court
notes that Plaintiff had already served approximately 75% of his segregation time
at the time of the rehearing, suggesting that most of the additional time he alleges
he spent in segregation is attributable to the Menard Adjustment Committee, not
the Pontiac Committee. At this time, the Court does not find plaintiff’s allegations
plausible. Count 5 will be dismissed without prejudice for failure to state a claim
upon which relief can be granted.
Pending Motions
Plaintiff’s Motion for IFP remains pending; the Court is waiting on
additional information and will address that Motion via separate order. (Doc. 6).
Plaintiff’s Motion for Recruitment of Counsel will be DENIED at this time.
(Doc. 3). When a pro se litigant submits a request for assistance of counsel, the
Court must first consider whether the indigent plaintiff has made reasonable
attempts to secure counsel on his own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th
Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007)). If so, the
Court must examine “whether the difficulty of the case—factually and legally—
exceeds the particular plaintiff's capacity as a layperson to coherently present it.”
Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The question ... is
whether the plaintiff appears competent to litigate his own claims, given their

15

degree of difficulty, and this includes the tasks that normally attend litigation:
evidence gathering, preparing and responding to motions and other court filings,
and trial.” Pruitt, 503 F.3d at 655. The Court also considers such factors as the
plaintiff's

“literacy,

communication

skills,

education

level,

and

litigation

experience.” Id.
Here plaintiff has affirmatively stated that “I haven’t contacted any
attorney.”

(Doc. 3, p. 1).

Having made no effort, the Court cannot say that

plaintiff’s efforts have been reasonable.

Plaintiff’s Motion for Recruitment is

DENIED for failure to make the threshold showing. (Doc. 3).
Plaintiff’s motion for service of process at government expense is DENIED
as MOOT because the Court will not order service on any defendant at this time.
(Doc. 2).
Disposition
IT IS HEREBY ORDERED that Counts 1-3 are DISMISSED with prejudice
as frivolous claims.

Counts 4 and 5 are DISMISSED without prejudice for

failure to state a claim upon which relief can be granted.
Defendants Butler, Scott, Cowan, Godinez, and McCarty are DISMISSED
with prejudice. Defendants Pfister, Brown, and Salinas are DISMISSED without
prejudice. As no claims remain, the Complaint is DISMISSED without prejudice
at this time.
Plaintiff’s Motion for Recruitment of Counsel is DENIED. (Doc. 3) Plaintiff’s
Motion for Service of Process is DENIED as MOOT. (Doc. 2).
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IT IS FURTHER ORDERED that, should he wish to proceed with this case,
plaintiff shall file his first amended complaint, stating any facts which may exist to
support Count 4 and/or Count 5, on or before May 12, 2017.

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 other pleading. Should the first amended complaint not
conform to these requirements, it shall be stricken. Plaintiff must also re-file any
exhibits he wishes the Court to consider along with the first amended complaint.
Failure to file an amended complaint shall result in the dismissal of this action
with prejudice.

Such dismissal shall count as one of plaintiff’s three allotted

“strikes” within the meaning of 28 U.S.C. § 1915(g).
Plaintiff is warned, however, that the Court takes the issue of perjury
seriously, and that any facts found to be untrue in the amended complaint may be
grounds for sanctions, including dismissal and possible criminal prosecution for
perjury.

Rivera v. Drake, 767 F.3d 685, 686 (7th Cir. 2014) (dismissing a

lawsuit as a sanction where an inmate submitted a false affidavit and
subsequently lied on the stand).
No service shall be ordered on any defendant until after the Court
completes its § 1915A review of the first amended complaint.

17

In order to assist plaintiff in preparing his amended complaint, the Clerk is
DIRECTED to mail plaintiff a blank civil rights complaint form.

Judge Herndon
2017.04.12
08:50:48 -05'00'

IT IS SO ORDERED.
DATED: April 12, 2017

United States District Judge

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