Brady v. Unknown Party

Filing 7

IT IS HEREBY ORDERED that the COMPLAINT, including COUNT 13, is DISMISSED without prejudice for failure to state a claim upon which relief may be granted. IT IS FURTHER ORDERED that UNKNOWN PARTY is dismissed without prejudice for failure to state a claim upon which relief may be granted. 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 his access to the courts claim (on or befor e December 29, 2017). Should Plaintiff fail to file his First 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. (Amended Pleadings due by 12/29/2017). Signed by Judge Nancy J. Rosenstengel on 12/1/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
HARLEY M. BRADY,
Plaintiff,
vs.
UNKNOWN PARTY,
Defendant.

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Case No. 17-cv-1203-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
In Brady v. IDOC, Case No. 17-cv-883-NJR (S.D. Ill. Aug. 21, 2017) (“Original
Action”), Plaintiff Harley M. Brady, an inmate of the Illinois Department of Corrections
(“IDOC”) currently housed in Lawrence Correctional Center (“Lawrence”), brought suit
pursuant to 42 U.S.C. § 1983 for deprivations of his constitutional rights allegedly occurring at
Lawrence. Pursuant to George v. Smith, 507 F.3d 605 (7th Cir. 2007), an access to the courts
claim was severed from that initial action to form the basis for this action, Case No. 17-cv-1203NJR.
This case is now before the Court for a preliminary review of that claim 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.
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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).
After fully considering the relevant allegations in Plaintiff’s Complaint, the Court
concludes that this action is subject to summary dismissal.
The Complaint
The allegations in Plaintiff’s Complaint (Doc. 2) relevant to this severed action are as
follows: An officer of the Court requested Plaintiff’s mental health records in connection with
Plaintiff’s presentence investigation report. (Doc. 2, p. 9). IDOC failed to respond. Id. Plaintiff
also requested records in connection with a motion to reconsider his sentence. Id. IDOC failed to
respond.
Discussion
In its Severance Order (Doc. 1), the Court designated the following count to be severed
into this pro se action. The parties and the Court will continue to use this designation in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court.
Count 13:

Access to the Courts claim against Unknown Party for failing to
provide Plaintiff’s mental health records on two occasions in
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connection with hearings and/or motions pertaining to Plaintiff’s
sentencing in his criminal case.
Count 13 will be dismissed for failure to state a claim upon which relief may be granted.
The Court finds it unnecessary to delve into the merits of Plaintiff’s allegations at this time, as he
has failed to associate specific defendants with this claim. Plaintiffs are required to associate
specific defendants with specific claims, so that defendants are put on notice of the claims
brought against them and so they can properly answer the complaint. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P. 8(a)(2).
IDOC is the only defendant associated with Count 13. IDOC, however, is a not suable
entity in connection with this § 1983 claim. See Will v. Mich. Dep’t of State Police, 491 U.S. 58,
71 (1989). Accordingly, IDOC was dismissed as a defendant in the Severance Order, and the
Court construed Count 13 as being directed against Unknown Party.
Without an identifiable defendant, Count 13 must be dismissed without prejudice for
failure to state a claim upon which relief may be granted. Plaintiff will be granted leave to
amend, however, so that he may name the appropriate defendant(s) or, at the very least, revise
his claim to be associated with a specifically designated unnamed defendant.
Disposition
IT IS HEREBY ORDERED that the COMPLAINT, including COUNT 13, is
DISMISSED without prejudice for failure to state a claim upon which relief may be granted.
IT IS FURTHER ORDERED that UNKNOWN PARTY is dismissed without
prejudice for failure to state a claim upon which relief may be granted.
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 his access to
the courts claim (on or before December 29, 2017). Should Plaintiff fail to file his First
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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). Such dismissal shall count as one of Plaintiff’s three allotted “strikes”
within the meaning of 28 U.S.C. § 1915(g).
Should Plaintiff decide to file a First 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,
“First Amended Complaint,” and he should use the case number for this action (i.e. 17-cv-1203NJR). 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. Plaintiff should include only related
claims in his new complaint. Claims found to be unrelated to the access to the courts claim will
be severed into new cases, new case numbers will be assigned, and additional filing fees will be
assessed.
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 a 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 is subject to review pursuant to 28 U.S.C. § 1915A.

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No service shall be ordered on any defendant until after the Court completes its § 1915A review
of the First Amended Complaint.
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 1 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).
In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
IT IS SO ORDERED.
DATED: December 1, 2017

___________________________
NANCY J. ROSENSTENGEL
United States 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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