Gborplay v. Barnhill et al

Filing 8

ORDER DISMISSING Plaintiff's second amended complaint. Plaintiff is GRANTED leave to file a Third Amended Complaint on or before May 11, 2017. Should Plaintiff fail to file his Third Amended Complaint within the allotted time or consistent wi th the instructions set forth in this Order, the entire case shall be dismissed with prejudice for failure to comply with a court order and/or for failure to prosecute his claims. To enable Plaintiff to comply with this Order, the CLERK is DIRECT ED to mail Plaintiff a blank civil rights complaint form along with a copy of Plaintiff's Original Complaint (Doc. 1), First Amended Complaint (to be docketed) and Second Amended Complaint (to be docketed). (Amended Pleadings due by 5/11/2017). Signed by Judge J. Phil Gilbert on 4/12/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
OWEN M. GBORPLAY,
No. 7450517
Plaintiff,
vs.
SGT. BARNHILL,
CTP. MEADORS,
WARDEN ACUFF,
PULASKI COUNTY DETENTION
CENTER, and
UNKNOWN PARTY

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Case No. 17-cv-155-JPG

Defendant.

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Owen M. Gborplay, a citizen of Liberia, is presently being detained in the
Pulaski County Detention Center. According to Plaintiff’s Original Complaint (Doc. 1), at the
time of the incident in question, he was a federal Immigration and Customs Enforcement (“ICE”)
detainee awaiting deportation.1 Plaintiff brings this action for deprivations of his constitutional
rights pursuant to 42 U.S.C. § 1983. This matter is presently before the Court on Plaintiffs
Motions for Leave to File an Amended Complaint (Doc. 5, filed on April 3, 2017 and Doc. 7,
filed April 10, 2017).

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Plaintiff’s legal status at the time of filing and at present is not entirely clear. Plaintiff’s filings indicate that he is
presently housed at the Pulaski County Detention Center (his pleadings have been mailed from the Pulaski County
Detention Center) and that at one point he was an immigration detainee awaiting deportation. The ICE inmate
locator states that Plaintiff is presently not in custody. This means that Plaintiff “was released from ICE custody
within the last 60 days for any of the following reasons: Removed from or voluntarily departed the United States,
Released from custody pending the outcome of their case, Released into the United States due to the resolution of
the immigration case (e.g., grant of an immigration benefit that permits the person to remain in the country), or
Transferred into the custody of another law enforcement or custodial agency.”
See
https://locator.ice.gov/odls/searchByName.do.

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Background
Plaintiff’s Original Complaint was filed on February 13, 2017. (Doc. 1). The original
Complaint identified the following Defendants: (1) Sgt. Barnhill; (2) Cpt. Meadors; (3) Warden
Acuff; (4) Pulaski County detention Center; and (5) Unknown Party (Medical Department). In
his Complaint, Plaintiff alleges that on January 5, 2017 (while he was an immigration detainee
being held awaiting deportation), after an incident in the “B” pod housing unit he was transferred
to segregation. (Doc. 1, p. 1). Upon transfer, Plaintiff was stripped naked in front of other
officers and the incident was recorded. Id. Additionally, he was placed in shackles around the
ankles, wrist, and belly. (Doc. 1, p. 2). The shackles were extremely tight. Id. Plaintiff
complained to Barnhill regarding the shackles but he refused to remove or loosen them. Plaintiff
was left like this for 24 hours. Id. Every thirty minutes, a nurse examined him but refused to
relay his concerns regarding the shackles being too tight. Id. In the morning, Sergeant Atkins
and another officer entered Plaintiff’s cell. Id. They agreed that the shackles were too tight and
adjusted them. Id. Plaintiff alleges that due to the tightness of the shackles during that 24 hour
period, he could not eat breakfast or lunch. Id. He also alleges that, as a result of this incident,
he suffers from pain in his lung and occasionally has difficulty breathing at night. Id. He is also
having difficulty sleeping and suffers from anxiety over the incident. Id. In connection with
these claims, Plaintiff requests monetary damages.
On April 3, 2017, Plaintiff filed a Motion to Amend Complaint. (Doc. 5). The Motion
and the proposed amended complaint were contained in a single document. The caption of the
proposed amended complaint provides as follows with regard to the parties:

“Owen M.

Gborplay, Plaintiff v. Sgt. Barnhill, Pulaski Co. Detention et. al.” However, the body of the
proposed amended complaint only identifies a single defendant – Pulaski County Detention

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Center. The proposed amended complaint does not include any claims pertaining to the January
5, 2017 incident described in the Original Complaint. Instead, the proposed amended complaint
brings allegations, directed at the Pulaski County Detention Center, pertaining to unreasonable
strip searches occurring between January and March of 2017. In connection with these claims,
Plaintiff requests monetary damages.
On April 10, 2017, Plaintiff filed a second Motion to Amend Complaint. Once again,
the motion and proposed amended complaint were contained in a single document. The caption
of the second proposed amended complaint provides as follows with regard to the parties:
“Owen M. Gborplay, Plaintiff v. Pulaski Co. Detention Medical Department et. al.” The body of
the proposed amended complaint only identifies a single defendant – Pulaski County Detention
Center Medical Department. The allegations in the second proposed amended complaint focus,
once again, on the January 5, 2017 incident described in the Original Complaint. However, all of
the allegations are directed against the Pulaski County Detention Center Medical. Additionally,
Plaintiff asserts facts that implicate ongoing and potentially serious health concerns.
Specifically, Plaintiff alleges that, as a result of the January 5, 2017 incident, he is “suffering
from sharp pain coming from under [his] heart and lack of breathing off and on throughout
during the day.” Plaintiff further alleges that he has requested medical treatment but has not yet
been examined by a physician. In connection with these claims, Plaintiff seeks only monetary
damages.
Leave to File is Granted
Pursuant to Federal Rule of Civil Procedure 15(a)(1), “[a] party may amend its pleading
once as a matter of course.” Plaintiff’s April 3, 2017, Motion to Amend Complaint (Doc. 5) is
GRANTED in accord with Federal Rule of Civil Procedure 15(a)(1). Accordingly, the Court

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DIRECTS the Clerk of the Court to docket the proposed amended complaint as Plaintiff’s First
Amended Complaint.
After amending once as a matter of course, in order to file an additional amended
complaint, a party must obtain either: (1) consent from the opposing party; or (2) leave of court.
Fed. R. Civ. P. 15(a)(2). This Court is to “freely give leave when justice so requires.” Id; see
Doe v. Howe Military School, 227 F.3d 981, 989 (7th Cir. 2000). Plaintiff’s April 10, 2017
Motion to Amend Complaint (Doc. 7) is GRANTED in accord with Federal Rule of Civil
Procedure 15(a)(2). Accordingly, the Court DIRECTS the clerk of the Court to docket the
proposed amended complaint as Plaintiff’s Second Amended Complaint.
Treatment of Amended Pleadings
The Court suspects that, when Plaintiff submitted his amended pleadings, Plaintiff
intended to supplement rather than replace the claims in his original complaint. However, this
type of supplementation is not permitted.

An amended complaint supersedes 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). Accordingly, only the allegations in the Second
Amended Complaint are presently before the Court. The allegations asserted in the Original
Complaint (Doc. 1) and in the First Amended Complaint (Doc. 5) are void.
Preliminary Screening of Plaintiff’s Second Amended Complaint
Given the allegations in the Second Amended Complaint pertaining to Plaintiff’s ongoing
medical issues, the Court is proceeding with an immediate screening of the Second Amended
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, 102627 (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 Second Amended Complaint
Plaintiff alleges that, on January 5, 2017, “due to the tightness of the belly chain I suffers
severe pain to my lung and have been experiencing lack of breathing and sharp pain coming
from right beneath my heart which stops me from taking deep breath for about a whole day or
couple hours at the least.” The Second Amended Complaint does not provide any further
allegations pertaining to the January 5, 2017 incident. Plaintiff contends that he has contacted
the Pulaski County Detention Center Medical Department but his requests for medical attention
have been ignored. He states he continues to suffer from “sharp pain coming from under [his]

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heart and lack of breathing off and on throughout during the day.” Plaintiff contends the Pulaski
County Detention Center Medical Department is liable for deliberate indifference. In connection
with his claims, Plaintiff requests $200,000 in damages. Plaintiff does not seek any form of
injunctive relief.
Discussion
The Court finds it convenient to divide the pro se action into a single count. The parties
and the Court will use this designation in all future pleadings and orders, unless otherwise
directed by a judicial officer of this Court. Any other claim that is mentioned in the Complaint
but not addressed in this Order should be considered dismissed without prejudice as inadequately
pled under the Twombly pleading standard.
Count 1 –

Deliberate indifference to serious medical needs against the
Pulaski County Detention Center Medical Department.

Plaintiff’s action will be dismissed without prejudice at this time because Plaintiff has
failed to name a proper defendant. The only Defendant Plaintiff has named in the case caption
and in the body of the Second Amended Complaint is the Pulaski county Detention Center
Medical Department. Section 1983 imposes liability on “any person” who, under color of state
law, deprives another of rights protected by the Constitution.2 In Monell, the Supreme Court
held that Congress intended municipalities and other local government entities to be included
among those persons to whom § 1983 applies. 436 U.S., at 690, 98 S.Ct., at 2035. However,
unlike municipalities, a jail is not a legal entity that can be sued under § 1983. See Smith v. Knox
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The section states, in relevant part:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress....” 42
U.S.C. § 1983.

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County Jail, 666 F.3d 1037, 1040 (7th Cir.2012) (Knox County Jail a “non-suable entity”);
Powell v. Cook County Jail, 814 F.Supp. 757, 578 (N.D.Ill. 1993) (Cook County Jail is not an
entity nor a “person” subject to suit under § 1983). The Pulaski County Detention Center
Medical Department is simply a department within the Pulaski County Detention Center.
Neither of these entities is a proper defendant in a § 1983 action. In order to proceed, Plaintiff
either must sue an appropriate legal entity, see, Monell v. Department of Social Services, 436
U.S. 658, 690 (1978), or an individual or individuals who “caused or participated in alleged
constitutional deprivation.” Wolf–Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983).
Therefore the Pulaski County Detention Center Medical Department will be dismissed with
prejudice as a Defendant. However, Plaintiff will be granted leave to amend his Complaint to
name a proper defendant.
Requirements for Third Amended Complaint
Plaintiff shall file his Third Amended Complaint on or before May 11, 2017. He should
label the pleading “Third Amended Complaint” and include Case Number 17–cv–155–JPG. The
amended complaint must stand complete on its own. Accordingly, the amended complaint
should include all of Plaintiff’s allegations in a single document. Each defendant must be
identified as a defendant in the caption of the complaint by name or Doe designation.3 The body
of the complaint must provide a brief statement of Plaintiff’s claims. For each claim, the Plaintiff
must state which specific defendant was involved and what specifically the defendant did. For
instance, if Plaintiff wishes to bring a claim pertaining to the January 5, 2017 incident he should
identify, by name or Doe designation, the officers, nurses, or other officials who were personally
involved and describe each defendant’s conduct.

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Plaintiff may designate an unknown Defendant as John or Jane Doe, but he should include descriptive information
(such as job title, shift worked, or location) to assist in the person's eventual identification.

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In order to assist Plaintiff in preparing his amended complaint, the Clerk of the Court
shall be directed to mail Plaintiff a blank civil rights complaint form along with a copy of
Plaintiff’s Original Complaint (Doc. 1), First Amended Complaint (to be docketed) and Second
Amended Complaint (to be docketed). It is strongly recommended that Plaintiff use this Court’s
civil rights complaint form.
Interim Relief
The Court is concerned with Plaintiff’s ongoing health issues and takes his allegations
very seriously. However, these matters cannot be addressed unless and until Plaintiff files a
viable action. Further, to date, all of Plaintiff’s pleadings have sought only monetary relief. To
the extent that Plaintiff wishes to obtain and/or needs medical care during the pendency of this
action, Plaintiff should file a separate motion for a TRO and/or a preliminary injunction pursuant
to Federal Rule of Civil Procedure 65. The motion should be filed in this action and not a
separate or new action. In it, Plaintiff must set forth the specific request for relief, as well as the
factual allegations that support the request.
Plaintiff’s Legal Status
In addition, the Complaint does not set forth sufficient allegations to determine the
applicable legal standard for Plaintiff’s claim. Different legal standards apply to medical claims
of an arrestee (Fourth Amendment), pretrial detainee (Fourteenth Amendment), and prisoner
(Eighth Amendment). The allegations in the Complaint shed little light on Plaintiff’s legal
status.

The Complaint does not mention the Fourth, Eighth, or Fourteenth Amendment.

Although Plaintiff is not required to plead legal theories at this stage in litigation, his amended
complaint should include information that, at a minimum, assists the Court in applying the
proper legal standard. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011);

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Hatmaker v. Mem’l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010); Aaron v. Mahl, 550 F.3d 659,
666 (7th Cir. 2008). That is, should Plaintiff amend his Complaint, he should tell the Court
whether he is currently an arrestee, pretrial detainee, or prisoner (with regard to any ongoing
constitutional violations). In addition, Plaintiff should tell the Court whether he was an arrestee,
pretrial detainee, or prisoner at the time of any alleged constitutional violations (such as the
violation that allegedly occurred on January 5, 2017).
Disposition
Plaintiff’s Motion to File Amended Complaint (Doc. 5) is GRANTED. The Court
DIRECTS the Clerk of the Court to docket the proposed amended complaint associated with this
motion (submitted on April 3, 2017) as Plaintiff’s First Amended Complaint.
Plaintiff’s Motion to File Amended Complaint (Doc. 7) is GRANTED. The Court
DIRECTS the Clerk of the Court to docket the proposed amended complaint associated with this
motion (submitted on April 10, 2017) as Plaintiff’s Second Amended Complaint.
Consistent with the Second Amended Complaint, the Clerk of the Court is DIRECTED
to terminate BARNHILL, MEADORS, ACUFF, PULASKI COUNTY DETENTION
CENTER, AND UNKNOWN PARTY from the docket. Further, consistent with the Second
Amended Complaint, the Clerk of the Court is DIRECTED to add the PULASKI COUNTY
DETENTION MEDICAL DEPARTMENT as a Defendant.
IT IS ORDERED that the PULASKI COUNTY DETENTION MEDICAL
DEPARTMENT is DISMISSED with prejudice. Consistent with this dismissal, the Clerk of
the Court is DIRECTED to terminate this Defendant from the docket.
As Plaintiff’s Second Amended Complaint names no other Defendants, the Complaint is
DISMISSED without prejudice.

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Plaintiff is GRANTED leave to file a “Third Amended Complaint” on or before May 11,
2017. Should Plaintiff fail to file his Third Amended Complaint within the allotted time or
consistent with the instructions set forth in this Order, the entire case shall be dismissed with
prejudice for failure to comply with a court order and/or for failure to prosecute his claims. FED.
R. APP. 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. § 1915(e)(2).
To enable Plaintiff to comply with this Order, the CLERK is DIRECTED to mail
Plaintiff a blank civil rights complaint form along with a copy of Plaintiff’s Original Complaint
(Doc. 1), First Amended Complaint (to be docketed) and Second Amended Complaint (to be
docketed).
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 Third 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
First Amended Complaint. The Third Amended Complaint is subject to review pursuant to 28
U.S.C. § 1915(e)(2).
Plaintiff is further 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 remains due and payable, regardless
of whether Plaintiff elects to file a Third 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

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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: April 12, 2017
s/J. Phil Gilbert_____
J. PHIL GILBERT
United States District Judge

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