Oliver v. Butler et al

Filing 5

IT IS HEREBY ORDERED that preliminary review of COUNTS 10-13 pursuant to 28 U.S.C. § 1915A is suspended in this case until after April 20, 2017. On or before that date, Plaintiff is ORDERED to file a First Amended Complaint that includes all r elated claims against the Menard defendants. Failure to file a First Amended Complaint that complies with this Order (including the instructions and deadline set forth herein) will result in the screening, dismissal, and/or further severance of Counts 10-13 after the deadline expires. (Amended Pleadings due by 4/20/2017). Signed by Judge David R. Herndon on 3/23/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL OLIVER

Suing as King Michael Oliver,
# B-89925,

Plaintiff,
vs.

Case No. 17-cv-00206-DRH

KIMBERLY BUTLER,
MAJOR LYERLA, and
SERGEANT SCOTT,
Defendants.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Michael Oliver, an inmate who is currently incarcerated at
Pinckneyville Correctional Center (“Pinckneyville”), brings this civil rights action
pursuant to 42 U.S.C. § 1983 against three officials at Menard Correctional
Center (“Menard”), who allegedly violated his constitutional rights there in 2015.
(Doc. 2, 2-1). These officials include Warden Kimberly Butler, Major Lyerla, and
Sergeant Scott (“Menard defendants”). Id. Plaintiff seeks monetary relief against
them. (Doc. 2, pp. 1, 5-6).
He originally brought these claims in Oliver v. Lashbrook, et al., No. 17-cv00169-DRH (S.D. Ill. 2017) (“original case”).

(Doc. 2).

That case addressed

claims against a group of Pinckneyville defendants, Menard defendants, and State
defendants. (Doc. 1, p. 1; Doc. 2). On February 24, 2017, the Court entered an

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initial order dismissing the State defendants with prejudice and severing the
claims against the Menard defendants into a new case. (Doc. 1).
The instant case focuses only on Plaintiff’s claims against the Menard
defendants, which the Court identified as follows:
Count 10 – Eighth Amendment claim against Major Lyerla for
making the decision to transfer Plaintiff to Menard on July 22, 2015,
to transfer him from the “hill” to the “pit” at Menard, and/or to
transfer him to Pinckneyville following the flood that occurred at
Menard on December 28, 2015. (Doc. 2, pp. 2-3, “Count 2”).
Count 11 – Claim against Warden Butler for conspiring with Major
Lyerla at Menard to violate Plaintiff’s constitutional rights and for
responding to the transfer decisions with gross negligence. (Doc. 2,
p. 2, “Count 2”).
Count 12 – Claim against Sergeant Scott for harassing and
threatening Plaintiff at Menard because of his visitor’s list. (Doc. 2,
p. 3, “Count 2”).
Count 13 – Fourteenth Amendment due process and negligence
claims against Major Lyerla and “others” for mishandling Plaintiff’s
grievances at Menard in order to prevent him from exhausting his
administrative remedies. (Doc. 2, p. 3, “Count 3”).
(Doc. 1, pp. 7, 13). This list of claims is consistent with the “counts” identified by
Plaintiff in the Complaint. (Doc. 2, pp. 2-5). Because Plaintiff offers few factual
allegations in support of these claims, the Court offers no summary of the
allegations here. Id.
With that said, the above list of claims appears to be incomplete. Omitted
from the list are additional claims Plaintiff included in the exhibits to the
Complaint.

(Doc. 2, pp. 7-23; Doc. 2-1, pp. 1-19).

Plaintiff refers to these

exhibits as “Amendments” and signals his intention to expand his claims against

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the Menard defendants. Id. In “Amendment A,” he refers to additional claims
against officials at Menard. (Doc. 2, p. 7). The claims are not included in the
Complaint. Id.
It is not even clear that Plaintiff filed all of the exhibits to the Complaint.
This is largely because he used no recognizable system for organizing and labeling
the exhibits. He included a series of exhibits in the following order: Exhibit 4
(Doc. 2, p. 14), Exhibit 6 (Doc. 2, p. 15), Exhibit X (Doc. 2, p. 16), Exhibit 10A
(Doc. 2, p. 17), Exhibit W (Doc. 2, pp. 18-19), Exhibit 10B (Doc. 2, pp. 20-21),
Exhibit Z (Doc. 2, pp. 22-23), Exhibit Z2 Squared (Doc. 2-1, p. 1), Exhibit T (Doc.
2-1, pp. 2-3), Exhibit T2 (Doc. 2-1, p. 4), Exhibit OR1 (Doc. 2-1, p. 5), Exhibit 17
(Doc. 2-1, p. 6), Exhibit 18 (Doc. 2-1, p. 7), Unnumbered Exhibits (Doc. 2-1, pp.
8-13), Exhibit IRA (Doc. 2-1, p. 14), Exhibit 29 (Doc. 2-1, pp. 15-19), etc. Given
the obvious lack of organization of his exhibits, the Court has no way to tell
whether the Complaint is complete.
Before conducting a preliminary review of Plaintiff’s claims against the
Menard defendants pursuant to 28 U.S.C. § 1915A, the Court will offer Plaintiff
an opportunity to file an amended complaint in this case that focuses only on
claims arising at Menard.

The instructions and deadline for amending the

complaint are set forth in the below disposition.

Failure to file an amended

complaint that is consistent with the below instructions and deadline shall result
in the Court’s preliminary review of Counts 10-13 based on the limited allegations

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that are set forth in the original Complaint and severance of unrelated claims into
new cases with an additional filing fee in each case.
Disposition
IT IS HEREBY ORDERED that preliminary review of COUNTS 10-13
pursuant to 28 U.S.C. § 1915A is suspended in this case until after April 20,
2017.

On or before that date, Plaintiff is ORDERED to file a First Amended

Complaint that includes all related claims against the Menard defendants. Failure
to file a First Amended Complaint that complies with this Order (including the
instructions and deadline set forth herein) will result in the screening, dismissal,
and/or further severance of Counts 10-13 after the deadline expires. No service
shall be ordered on the defendants in this case until the § 1915A review is
completed.
Should Plaintiff decide to file an amended complaint in this case, it is
strongly recommended that he use the forms designed for use in this District for
such actions. He must label the amended complaint, “First Amended Complaint,”
and refer to this case number (i.e., Case No. 17-00206-DRH).

The amended

complaint shall present each claim against the Menard defendants 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

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include only related claims in his amended complaint.

Claims found to be

unrelated 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.
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 previous pleading, and Plaintiff must
re-file any exhibits he wishes the Court to consider along with the First Amended
Complaint. The First Amended Complaint and exhibits must be labeled in
order, using letters or numbers, so that the Court can determine whether pages
are missing. The First Amended Complaint is also subject to review pursuant to
28 U.S.C. § 1915A.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this
action was incurred at the time the original case was filed, thus the filing fee of
$350.00 1 remains due and payable, regardless of whether Plaintiff elects to file an
amended complaint. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d
464, 467 (7th Cir. 1998).

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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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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.
Signed this 23rd day of March, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.03.23
14:31:33 -05'00'
United States District Judge

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