Kitterman v. Dennison et al

Filing 8

IT IS HEREBY ORDERED that the Complaint is DISMISSED without prejudice for failure to state a claim upon which relief may be granted.IT IS ORDERED that COUNTS 1, 2, 4, 5, 6, and 7 are DISMISSED without prejudice, and COUNT 3 is DISMISSED with prejud ice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file a First Amended Complaint in this case on or before June 19, 2017. Should Plaintiff fail to file his First Amended Compl aint within the allotted time, dismissal of this action will become with prejudice. To enable Plaintiff to comply with this Order, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form. (Amended Pleadings due by 6/19/2017). Signed by Judge Staci M. Yandle on 5/22/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHANE A. KITTERMAN,
#B-80577,

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Plaintiff,
vs.
JEFF DENNISON,
JASON GARNETT,
JOANNE HOSCH,
GLOBAL TEL-LINK CORP,
CHRISTOPHER BRINKLEY,
ILLINOIS DEPARTMENT OF
CORRECTIONS DIRECTOR, and
UNKNOWN PARTIES,
Defendants.

Case No. 17-cv-00290-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Shane Kitterman, an inmate who is currently incarcerated at Shawnee
Correctional Center (“Shawnee”), brings this action for deprivations of his constitutional rights
pursuant to “42 U.S.C. §§ 1331(1) and 1343.” 1 (Doc. 1). In the Complaint, he claims that
officials at Big Muddy River Correctional Center (“Big Muddy”) retaliated against him for filing
grievances and complaints about the prison’s video visitation program by removing him from his
job assignment, interfering with his court access, assaulting him and ultimately transferring him

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It is not clear whether Plaintiff intended to designate 28 U.S.C. § 1331 or 42 U.S.C. § 1983 as the
jurisdictional basis for his Complaint. He did not use the standard civil rights complaint form offered to
pro se litigants in this District when he prepared the operative Complaint. Had he done so, Plaintiff
would have been prompted to identify the jurisdictional basis for the action as follows: 42 U.S.C. § 1983
for actions brought by state prisoners, 28 U.S.C. § 1331 for actions brought by federal prisoners, the
Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680, or other law. Because Plaintiff is a state
prisoner who brings his claims against state officials, 42 U.S.C. § 1983 provides the jurisdictional basis
for his claims.

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to Shawnee. (Doc. 1, pp. 1-5). Plaintiff seeks declaratory judgment, monetary damages and
injunctive relief. (Doc. 1, p. 6).
This case is now before the Court for 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.
(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). The Complaint does not survive preliminary review under this
standard.
Complaint
Plaintiff was housed at Big Muddy from January 20, 2016 until January 9, 2017. (Doc. 1,
pp. 2, 5). During this time period, the prison allegedly offered inmates the option of participating
in “video visitation” with their families. (Doc. 1, p. 2). Acting on behalf of the prison, Warden
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Garnett worked with Global Tel-Link, Corp. (“GTL”) to make this service available. Id. GTL
set up kiosks in the prison. Id. Inmates who were interested in video visitation were required to
purchase an MP3 player and I-mail messaging services from GTL. Id. Their families were
required to sign a contract for in-home internet services with the same company. Id.
Plaintiff wished to participate in the program, so he purchased an MP3 player and other
products from GTL. (Doc. 1, p. 3). His family also entered into a contract with the company for
internet services. Id. After thirty-two days, Plaintiff learned that his MP3 player was “used,
defective, and unmerchantable.” Id. He maintains that video visitation “never existed.” Id.
Plaintiff attempted to recover the money that he and his family spent on the device,
related products, and internet services. (Doc. 1, p. 3). He filed grievances and appealed to the
Illinois Department of Corrections (“IDOC”) Director. Id.
deaf ears” and were denied.

(Doc. 1, pp. 3-4).

However, his grievances “fell on

When he attempted to communicate his

complaints directly to GTL through the kiosk, Plaintiff was “sanctioned.” (Doc. 1, p. 4). This
caused him “unwarranted stress and mental anguish.” Id.
Around the same time, Plaintiff secured a job in the prison law library. (Doc. 1, p. 3).
He was assigned the position of law clerk and worked under the supervision of Joanne Hosch.
Id. Plaintiff had access to hundreds of IDOC inmates in this position and he assisted them in
drafting pleadings and other legal documents. Id. In the process, he prepared pleadings on
behalf of numerous inmates who wanted to recover from the loss of money associated with the
prison’s video visitation program. Id.
Garnett, Hosch and several unknown correctional officers warned Plaintiff “to stop
helping other inmates file grievances and complaints against GTL and [D]efendant Garnett.”
(Doc. 1, p. 3). When he continued to do so, Plaintiff was allegedly assaulted by an unknown

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correctional officer. Id. He offers no details regarding the assault or any injuries he sustained as
a result of it. Id.
While working in the library in September and October 2016, Plaintiff observed Hosch
and a fellow inmate engage in sexual conduct on several occasions. (Doc. 1, p. 4). Plaintiff
reported each incident to the Prison Rape Elimination Act (“PREA”) hotline. Id. The PREA
representative relayed details of his allegations to Lieutenant Denise Minor, 2 who shared the
information with Hosch. Id. As soon as Hosch learned about Plaintiff’s allegations against her,
she “immediately removed the plaintiff from his assigned job as a law clerk.”

Id.

No

disciplinary report or reprimand was ever issued against Hosch. Id.
Plaintiff eventually filed suit in Illinois state court under the Illinois Consumer Fraud and
Deceptive Business Practices Act, 815 ILCS 505/1 et seq. 3 (Doc. 1, p. 4). Chris Brinkley
allegedly instructed correctional officers to threaten and intimidate Plaintiff in an effort to
discourage him from pursuing his claims. (Doc. 1, pp. 4-5). These officers threatened Plaintiff
and his family. (Doc. 1, p. 5). Plaintiff provides no details regarding the date, time, context or
substance of any threats. Id. In response to them, however, he requested a prison transfer to a
comparable facility, but the IDOC Director determined that he was “properly placed.” Id.
The IDOC Director, Garnett and Brinkley changed their minds about Plaintiff’s
placement after they were served with an order in the pending state case compelling them to
2

This individual is not named as a defendant in the Complaint, and any claims against Lieutenant Minor
should be considered dismissed without prejudice. See FED. R. CIV. P. 10(a) (noting that the title of the
complaint “must name all the parties”); Myles v. United States, 416 F.3d 551, 551-52 (7th Cir. 2005)
(holding that to be properly considered a party, a defendant must be “specif[ied] in the caption”).
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Plaintiff devotes significant attention in the Complaint to his grievances regarding the video visitation
program implemented by Warden Garnett and GTL at Big Muddy. (Doc. 1, pp. 2-6). In connection with
this program, Plaintiff explains that he is already pursuing claims against the defendants in Illinois state
court, and he has not reasserted those claims here. The state law claims pertaining to the video visitation
program are therefore considered dismissed without prejudice from this action. This includes his claims
under the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq., and his
claim of fraud.

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produce documents pertaining to the unlawful sale of defective products to unsuspecting
inmates. (Doc. 1, p. 5). Plaintiff was subsequently transferred to Shawnee on January 10, 2017.
Id. He alleges that the facility is not comparable to Big Muddy. Id. Shawnee houses the “worst
offenders in the State of Illinois.” Id. Prison gang activity and violence are significant problems
there. Id. Inmates are denied access to court-ordered drug and alcohol programs. Id. Shawnee
is also located farther away from Plaintiff’s family than Big Muddy. Id. He vaguely alludes to
“several incidents of assault by Warden Dennison and his officers that resulted from Plaintiff’s
continued efforts to pursue his claims against the Director, Garnett, Brinkley and several
unknown correctional officers. Id. He also refers to instances in which the mailroom staff at
Shawnee “blocked and destroyed several legal documents placed in the prison mail system.” Id.
Plaintiff now asserts claims against the defendants for retaliation. (Doc. 1). In addition,
he brings claims of interference with court access, assault and intentional infliction of emotional
distress. (Doc. 1, p. 6). Plaintiff seeks declaratory judgment and monetary relief. Id. He also
requests injunctive relief, in the form of an order requiring prison officials to reinstate his job and
transfer him to a facility that is closer to his family. Id.
Discussion
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the
Court deems it appropriate to organize the claims in Plaintiff’s pro se Complaint into the
following counts:
Count 1 - Fourteenth Amendment claim against Defendants for denying Plaintiff
access to video visitation with his family even after he purchased the equipment
and service plan necessary to participate in the program through GTL.

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Count 2 - First Amendment claim against Defendants for retaliating against
Plaintiff because he pursued claims for money damages arising from Big
Muddy’s video visitation program in Illinois state court.
Count 3 - Fourteenth Amendment due process claim against Defendants for
mishandling the grievances and appeals Plaintiff filed to complain about Big
Muddy’s video visitation program.
Count 4 - First and/or Fourteenth Amendment denial of access to courts claim
against Defendants for interfering with Plaintiff’s legal mail and pleadings
pertaining to his Illinois state case.
Count 5 - Eighth Amendment claim against Defendants for repeatedly assaulting
Plaintiff.
Count 6 - First Amendment retaliation claim against Hosch for removing Plaintiff
from his position as law library clerk because he reported her to the PREA hotline
for sexual misconduct.
Count 7 - Illinois state law claim for intentional infliction of emotional distress
against Defendants.
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. The designation of these counts does not
constitute an opinion as to their merit. Any claim that is not included in the above-referenced
list should be considered dismissed without prejudice from this action.
None of the claims survive preliminary review. The Complaint generally lacks sufficient
detail to support claims against the defendants.

Plaintiff briefly touches upon numerous

constitutional deprivations that occurred in connection with the video visitation program at Big
Muddy. However, the allegations offered in support of the claims are undeveloped.
In order to survive preliminary review, the claim of entitlement to relief must cross “the
line between possibility and plausibility.” Twombly, 550 U.S. at 557. A claim is plausible on its
face “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009). A claim must be dismissed when a plaintiff does not plead “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “[A]bstract
recitations of the elements of a cause of action or conclusory legal statements” will not support a
claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). As discussed in more detail below,
Plaintiff consistently fails to nudge his claims from the realm of “possible” to “plausible.” As a
result, the Complaint states no claim upon which relief may be granted and shall therefore be
dismissed.
Count 1
The Complaint supports no constitutional claim against the defendants for denying
Plaintiff access to video visitation at Big Muddy. Courts generally analyze this claim under the
Fourteenth Amendment Due Process Clause and consistently hold that the loss of visitation
privileges, even those including contact visits, is not an “atypical and significant hardship” that
gives rise to a protected liberty interest or triggers the right to due process of law. See, e.g.,
Woody v. Zatecky, 594 F. App’x 311 (7th Cir. 2015) (citing Lekas v. Briley, 405 F.3d 602, 605,
607-08, 613 (7th Cir. 2005) (no liberty interest deprived by denial of contact visits plus loss of
other privileges); Dunn v. Castro, 621 F.3d 1196, 1202-03 (9th Cir. 2010); Phillips v. Norris,
320 F.3d 844, 847 (8th Cir. 2003); Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002);
Ramos v. Lamm, 639 F.2d 559, 580, n. 26 (10th Cir. 1980)). In other words, no claim arises
from the denial of access to video visitation.
In his Complaint, Plaintiff did not indicate whether he was otherwise deprived of
visitation with his family or that video visitation was his only means of contacting them. Either
way, the Complaint states no claim upon which relief may be granted. Id. Count 1 shall
therefore be dismissed with prejudice against all of the defendants.

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Count 2
The Complaint refers to many potential retaliation claims but offers insufficient
allegations in support of all of them.

A prisoner who seeks to bring a First Amendment

retaliation claim must show the following: (1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in
the future; and (3) the First Amendment activity was “at least a motivating factor” in the
defendants’ decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th
Cir. 2009) (citing Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008) (quoting Massey v.
Johnson, 457 F.3d 711, 716 (7th Cir. 2006)).
Plaintiff alludes to several instances of possible retaliation by the defendants.

For

example, he alleges that he was “sanctioned” for attempting to complain directly to GTL through
the kiosk about his lack of access to video visitation. (Doc. 1, p. 4). Plaintiff further claims that
Garnett, Hosch and an unknown correctional officer attempted to dissuade him from filing
grievances and complaints about the video visitation services by warning him not to do so, and
he was later assaulted by still another individual. (Doc. 1, p. 3). Brinkley and other unknown
correctional officers also allegedly threatened Plaintiff not to proceed with his claims against the
defendants in Illinois state court. (Doc. 1, pp. 4-5). When the IDOC Director, Garnett and
Brinkley were served with discovery in the state suit, Plaintiff was subsequently transferred.
(Doc. 1, p. 5). Finally, Plaintiff claims that Dennison and other unknown mailroom staff at
Shawnee either assaulted him or interfered with his mail following his transfer. Id.
The problem with all of these possible retaliation claims is that Plaintiff offered virtually
no factual allegations in support of them. The Complaint drew no connection between the
protected conduct and the acts of retaliation. In addition, Plaintiff consistently failed to identify

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who was responsible for the retaliatory conduct. It appears that most acts of retaliation were
carried out by a non-party. Without connecting the protected conduct and the retaliatory act of a
defendant, the Complaint falls short of stating a claim of retaliation against any of the
defendants. Accordingly, Count 2 shall be dismissed without prejudice.
Count 3
No due process claim arises under the Fourteenth Amendment based on the defendants’
mishandling of Plaintiff’s grievances and appeals.

Prison grievance procedures are not

constitutionally mandated and thus do not implicate the Due Process Clause per se. Under the
circumstances, the alleged mishandling of grievances “by persons who otherwise did not cause
or participate in the underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953
(7th Cir. 2011). See also Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008); George
v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.
1996). As such, Count 3 shall be dismissed against all of the defendants with prejudice.
Count 4
The Complaint also supports no claim against the defendants for denying Plaintiff access
to the courts. Plaintiff refers to instances in which officials at Shawnee “blocked and destroyed
several legal documents placed in the prison mail system” in an effort to prevent him from
pursuing his Illinois state case. (Doc. 1, p. 5). As discussed above, these allegations are simply
too vague and undeveloped to state a plausible court access claim against any of the defendants.
It has long been held that prisoners have a fundamental right of meaningful access to the
courts. Bounds v. Smith, 430 U.S. 817 (1977). Prison officials have an affirmative obligation to
provide inmates with access to the law library and materials necessary to pursue litigation.
Martin v. Davies, 917 F.2d 336, 338 (7th Cir. 1990) (citing DeMallory v. Cullen, 855 F.2d 442,

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446 (7th Cir. 1988)).

Inmates also have a right to send and receive mail.

Kaufman v.

McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005) (citing Rowe v. Shake, 196 F.3d 778, 782 (7th
Cir. 1999)). Legal mail receives greater protections than other types of mail. Id. Violations of
the right to access the courts may be vindicated in federal court in a civil rights action brought
pursuant to § 1983.
Before a plaintiff can proceed with a claim, however, he must demonstrate that he
suffered actual or threatened detriment to specific litigation. Id. at 340; Howland v. Kilquist, 833
F.2d 639, 642-43 (7th Cir. 1987); Hossman v. Sprandlin, 812 F.2d 1019, 1021-22 (7th Cir.
1987). Vague or conclusory allegations to this effect will not support a claim. A plaintiff must
“spell out, in minimal detail, the connection between the alleged denial of access to legal
materials and an inability to pursue a legitimate challenge to a conviction, sentence, or prison
conditions.” Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006).
Nowhere in the Complaint did Plaintiff spell out any connection between a defendant’s
interference with his access to legal materials, the law library or his legal mail and his ability to
pursue non-frivolous litigation. Without these basic allegations, the Court cannot allow this
claim to proceed.

Therefore, Count 4 shall be dismissed without prejudice against the

defendants.
Count 5
Plaintiff’s allegations of “assault” against numerous known and unknown defendants
shall also be dismissed. Claims of this type typically arise under the Eighth Amendment, which
proscribes cruel and unusual punishment of prisoners. U.S. CONST. amend. VIII. Allegations of
both physical and verbal assault may support an Eighth Amendment claim because the alleged
pain sufficient to constitute cruel and unusual punishment can be either physical or

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psychological. Beal v. Foster, 803 F.3d 356, 357 (7th Cir. 2015) (citing Watson v. Carter, 668
F.3d 1108, 1112 (9th Cir. 2012)). With that said, “simple verbal harassment” is generally not
enough to constitute cruel and unusual punishment. Beal, 803 F.3d at 858 (citing DeWalt v.
Carter, 224 F.3d 607, 612 (7th Cir. 2000)). Where a plaintiff is subjected to physical force by a
prison official, a claim of excessive force may arise under the Eighth Amendment if the official
“applied force maliciously and sadistically to cause harm rather than in a good-faith attempt to
maintain or restore discipline.” Caffey v. Maue, -- F. App’x --, 2017 WL 659349 (7th Cir. 2017)
(citing Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Rice ex rel. Rice v. Corr. Med. Servs., 675
F.3d 650, 668 (7th Cir. 2012)).
Plaintiff repeatedly refers to being assaulted by various defendants but provides no
context for his claims. He does not indicate whether the “assaults” involved physical contact or
verbal harassment or both. Frequently, Plaintiff fails to indicate who assaulted him, even in
generic terms. He consistently fails to allege when, where, and under what circumstances each
assault occurred and provides no description of the assault itself. The Court has no way of
knowing what, if any, injuries Plaintiff sustained as a result of each assault. It is also unclear
whether other prison officials were present and failed to intervene. Given the absence of details
regarding the various assaults on Plaintiff by the defendants, this claim cannot proceed and
Count 5 shall be dismissed without prejudice against all of the defendants at this time.
Count 6
The Complaint fails to state a viable First Amendment retaliation claim against Hosch.
According to the Complaint, Hosch immediately terminated Plaintiff from his position as a law
clerk when she learned that he reported her for sexual misconduct to the PREA hotline. (Doc. 1,
p. 4). The protected conduct, i.e., his report of staff sexual misconduct to the PREA hotline, is

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premised on allegations that suggest Hosch’s misconduct was merely possible and not plausible.
Plaintiff specifically alleges that he reported Hosch for sexual misconduct after he witnessed her
engaging in interactions of a sexual nature with another inmate. Id. He does not describe the
conduct that he observed or indicate that Hosch was ever disciplined for it. Id. On the contrary,
he alleges that Hosch was never disciplined or even reprimanded. Id.
In the context of First Amendment retaliation claims, “[o]nly nonfrivolous prisoner’s
grievances against prison officials are protected by the First Amendment.” Gillis v. Pollard, 554
F. App’x 502, 506 (7th Cir. 2014) (citing Hasan v. U.S. Dep’t of Labor, 400 F.3d 1001, 1005
(7th Cir. 2005); Herron v. Harrison, 203 F.3d 410, 415 (7th Cir. 2000)). The Court is unable to
find that Plaintiff engaged in protected conduct because he offers no indication that his complaint
about Hosch via the PREA hotline was nonfrivolous. Where a plaintiff “pleads facts that are
‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and
plausibility of entitlement to relief.’” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citing Twombly,
550 U.S. at 557)). The allegations offered in support of this claim do not show that Plaintiff is
entitled to relief. See id. (citing FED. R. CIV. P. 8(a)(2)). Count 6 shall therefore be dismissed
without prejudice against Defendant Hosch.
Count 7
Plaintiff’s state law claims shall also be dismissed without prejudice at this time. Where
a district court has original jurisdiction over a civil action such as a § 1983 claim, it also has
supplemental jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so long
as the state claims “derive from a common nucleus of operative fact” with the original federal
claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). “A loose factual

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connection is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008)
(citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)).
Plaintiff asserts that the defendants’ actions constitute intentional infliction of emotional
distress.

However, the allegations are insufficient to support a claim against any of the

defendants.

The Illinois Supreme Court has set forth three requirements necessary to

demonstrate the intentional infliction of emotional distress: (1) the conduct involved must be
truly extreme and outrageous; (2) the actor must either intend that his conduct inflict severe
emotional distress, or know that there is at least a high probability that his conduct will cause
severe emotional distress; and (3) the conduct must in fact cause severe emotional distress.
Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001) (citing McGrath v. Fahey, 126 Ill. 2d 78,
127 Ill. Dec. 724, 533 N.E.2d 806, 809 (1988)).
Beyond vaguely alluding to mental anguish and emotional distress, Plaintiff offers
virtually no allegations in support of this claim. It is unclear what conduct on the part of the
defendants caused him to suffer distress. More to the point, Plaintiff fails to describe his level of
distress in a manner that suggests it was indeed severe. He does not mention any symptoms of
distress or the need for mental health treatment or medication. Plaintiff also does not describe
the impact of this distress on his daily life. Once again, the allegations in the Complaint fall far
short of supporting this claim. Accordingly, Count 7 shall also be dismissed without prejudice
against all of the defendants.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated above, the Complaint is
DISMISSED without prejudice for failure to state a claim upon which relief may be granted.

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IT IS ORDERED that COUNTS 1, 2, 4, 5, 6, and 7 are DISMISSED without prejudice,
and COUNT 3 is DISMISSED with prejudice for failure to state a claim upon which relief may
be granted.
IT IS FURTHER ORDERED that Plaintiff is GRANTED leave to file a “First
Amended Complaint” in this case on or before June 19, 2017. Should Plaintiff fail to file his
First Amended Complaint within the allotted time, dismissal of this action will become 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). Further, a “strike” will be assessed.
See 28 U.S.C. § 1915(g).
Should Plaintiff decide to file an amended complaint, it is strongly recommended that he
use the forms designed for use in this District for such actions. He should be careful to label the
pleading, “First Amended Complaint,” and he must list this case number (Case No. 17-290SMY) on the first page. To enable Plaintiff to comply with this Order, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
Plaintiff must describe the actions taken by each defendant that resulted in the
deprivation of his constitutional rights. He 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 or including any other unrelated claims
in his amended complaint. Claims found to be unrelated will be further severed into new
cases, new case numbers will be assigned, and additional filing fees will be assessed.
Plaintiff is ADVISED that this dismissal shall not count as one of his allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g).

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An amended complaint supersedes and replaces the original Complaint, rendering the
original 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. Finally, the First Amended Complaint is 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 action was filed, thus the filing fee of $350.00 remains due and payable,
regardless of whether Plaintiff elects to file a First 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: May 22, 2017
s/ STACI M. YANDLE
District Judge,
United States District Court

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