Cotton v. Larson et al

Filing 9

IT IS HEREBY ORDERED that Plaintiff's First Amended Complaint (Doc. 8) is DISMISSED without prejudice for failure to state a claim upon which relief may be granted and for noncompliance with Rule 8(a)(3) of the Federal Rules of Civil Procedure.P laintiff is GRANTED leave to file a Second Amended Complaint on or before April 10, 2017. Should Plaintiff fail to file his Second Amended Complaint within the allotted time or consistent with the instructions set forth in this Order, the entire case will be dismissed with prejudice. (Amended Pleadings due by 4/10/2017). Signed by Judge Staci M. Yandle on 3/13/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KORDALE COTTON,
# Y-13092,
Plaintiff,
vs.
DR. LARSON
and GANG GERST,
Defendants.

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Case No. 17-cv-00033-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter is now before the Court for preliminary review of the First Amended
Complaint filed by Plaintiff Kordale Cotton on March 7, 2017. (Doc. 8). Plaintiff filed this civil
rights action pursuant to 42 U.S.C. § 1983 against officials at Big Muddy River Correctional
Center who allegedly denied him medical care for osteoid osteoma in his right finger and for
sickle cell anemia. (Doc. 8, p. 7). The original Complaint (Doc. 1) did not survive screening
under 28 U.S.C. § 1915A and was dismissed without prejudice on February 6, 2017. (Doc. 7).
Plaintiff was granted leave to file a First Amended Complaint by March 6, 2017. Id.
Plaintiff filed a timely First Amended Complaint. However, it also does not survive
screening.

Under § 1915A, the Court is required to promptly screen prisoner complaints,

including amended complaints, to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The
Court is required to dismiss any portion of the complaint 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).

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Discussion
Plaintiff’s First Amended Complaint includes no allegations against the defendants in the
statement of Plaintiff’s claim. (Doc. 8, p. 7). In fact, Plaintiff fails to mention the defendants at
all. Id. “A plaintiff cannot state a claim against a defendant by including the defendant’s name
in the caption.” Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Merely invoking the name
of a potential defendant is not sufficient to state a claim against that individual. Id.
Additionally, to be held liable under § 1983, an “individual defendant must have caused
or participated in a constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 809,
810 (7th Cir. 2005) (citations omitted). In other words, Plaintiff must indicate what each
defendant did to violate his constitutional rights. He should set forth factual allegations that
describe his efforts to notify each of the defendants, verbally or in writing, about his serious
medical needs and each of their responses to his requests for treatment.
The First Amended Complaint also includes no request for relief as required by FED. R.
CIV. P. 8(a)(3). This relief may include monetary damages or injunctive relief -- Plaintiff has
requested neither. If Plaintiff wishes to proceed with this action, he must include his request for
relief in a Second Amended Complaint.
For the above-stated reasons, the First Amended Complaint does not survive review
under § 1915A, and it shall be dismissed. However, the dismissal is without prejudice, and
Plaintiff shall have one final opportunity to amend his complaint. If he chooses to do so,
Plaintiff must adhere to the deadline and instructions in the below disposition. Failure to do so
will result in dismissal of this action with prejudice.

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Disposition
IT IS HEREBY ORDERED that Plaintiff’s First Amended Complaint (Doc. 8) is
DISMISSED without prejudice for failure to state a claim upon which relief may be granted and
for noncompliance with Rule 8(a)(3) of the Federal Rules of Civil Procedure.
Plaintiff is GRANTED leave to file a “Second Amended Complaint” on or before April
10, 2017. Should Plaintiff fail to file his Second Amended Complaint within the allotted time or
consistent with the instructions set forth in this Order, the entire case will be dismissed with
prejudice. FED. R. CIV. P. 41(b). See generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir.
1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. § 1915A. Further, the
Court will assess a “strike” against Plaintiff. See 28 U.S.C. § 1915(g).
Should Plaintiff decide to file a Second Amended Complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should label the form,
“Second Amended Complaint,” and he should use the case number for this action (i.e. 17-cv00033-SMY). The pleading shall present each claim in a separate count, and each count shall
specify, by name, each defendant alleged to be liable under the count, as well as the actions
alleged to have been taken by that defendant. Plaintiff should attempt to include the facts of his
case in chronological order, inserting each defendant’s name where necessary to identify the
actors. Plaintiff should refrain from filing unnecessary exhibits. He should include only related
claims in his Second Amended Complaint. Claims found to be unrelated to one another will be
severed into new cases, new case numbers will be assigned, and additional filing fees will be
assessed. To enable Plaintiff to comply with this order, the CLERK is DIRECTED to mail
Plaintiff a blank civil rights complaint form.

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An amended complaint supersedes and replaces all prior complaints, rendering them
void. See Flannery v. Recording Industry Ass’n of America, 354 F.3d 632, 638 n. 1 (7th Cir.
2004).

The Court will not accept piecemeal amendments.

Thus, the Second Amended

Complaint must stand on its own, without reference to any previous pleading, and Plaintiff must
re-file any exhibits he wishes the Court to consider along with the Second Amended Complaint.
The Second Amended Complaint is subject to review pursuant to 28 U.S.C. § 1915A.
Plaintiff is once again ADVISED that his obligation to pay the filing fee for this action
was incurred at the time the action was filed, thus the filing fee of $350.00 1 remains due and
payable, regardless of whether Plaintiff elects to file a Second Amended Complaint. See 28
U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than 7
days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: March 13, 2017
s/ STACI M. YANDLE
U.S. District Judge

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Pursuant to 28 U.S.C. § 1914, effective May 1, 2013, an additional $50.00 administrative fee is also to
be assessed in all civil actions, unless pauper status has been granted.

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