McClurkin v. Baldwin et al

Filing 6

IT IS HEREBY ORDERED that Plaintiff's Complaint (Doc. 1) is DISMISSED without prejudice for non-compliance with Rule 8 of the Federal Rules of Civil Procedure and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Plaintiff is GRANTED leave to file an amended complaint on or before December 13, 2017. Should Plaintiff fail to file an amended complaint within the allotted time or seek an extension of the deadline before it expires, dismissal will become with prejudice. (Action due by 12/13/2017). Signed by Chief Judge Michael J. Reagan on 11/15/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRYAN McCLURKIN, #B13440,
Plaintiff,
vs.
JOHN BALDWIN,
S. A. GODINEZ,
JACQUELINE LASHBROOK,
KIMBERLY BUTLER,
GAIL WALLS,
WEXFORD MEDICAL SERVICES, INC.,
and JOHN/JANE DOE,
Defendants.

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Case No. 17-01228-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Bryan McClurkin, an inmate who is currently incarcerated at Stateville
Correctional Center (“Stateville”), brings this action pursuant to 42 U.S.C. § 1983 against several
current and former high-ranking officials at Menard Correctional Center (“Menard”) and the
Illinois Department of Corrections (“IDOC”). (Doc. 1). Plaintiff asserts claims against each of
the defendants for violating his rights under the First, Eighth, and Fourteenth Amendments and
Illinois state law. He seeks declaratory judgment and monetary damages. 1 (Doc. 1, pp. 18-27).
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.
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Plaintiff also filed a Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. 2),
which was denied without prejudice on November 13, 2017. (Doc. 5).

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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.
Id. 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 in 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 screening under this standard and
shall be dismissed.
The Complaint
In the Complaint, Plaintiff names several high-ranking prison officials in connection with
alleged violations of his rights at Menard under federal and state law. (Doc. 1). These officials
include the current and former IDOC Directors, the current and former prison wardens, the
prison’s healthcare administrator, and a private medical corporation. (Doc. 1, p. 1). Plaintiff
asserts claims against each defendant under the First, Eighth, and Fourteenth Amendments, as
well as Illinois state law. (Doc. 1, pp. 1-27).
Although the Complaint is voluminous, it contains few factual allegations against the
defendants. Instead, it reads like a memorandum of law. Plaintiff devotes most of the Complaint

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to a discussion of the applicable law and citations to decisions issued by the Seventh Circuit
Court of Appeals.
Pages 9 through 13 of the Complaint contain some factual allegations, but few actually
refer to individual defendants. (Doc. 1, pp. 9-13). In place of detailed factual allegations,
Plaintiff refers to exhibits instead. (Doc. 1-1, pp. 1-26). The exhibits include grievances that he
filed over the course of more than three years and medical records spanning the same time
period, among other things. Id. The exhibits address many issues and touch upon numerous
potential claims. Id. Few involve the named defendants. Id.
Plaintiff’s claims seem to arise from injuries he sustained on or around April 10, 2014,
when he fell from a chair at Menard. (Doc. 1, pp. 9-13, 32-36; Doc. 1-1, pp. 1-46). At the time,
he was handcuffed and sustained injuries to his wrist and neck. Id. His neck injury apparently
grew worse over time. Id. Plaintiff began to experience intense pain in his neck and back and
even numbness in his left arm and hand. Id. He submitted multiple requests for medical care
during his incarceration at Menard and was not satisfied with the treatment he received. Id.
Plaintiff brings a claim of retaliation under the First Amendment, deliberate indifference
under the Eighth Amendment, and denial of due process under the Fourteenth Amendment
against the defendants. (Doc. 1, pp. 1-26). He also asserts claims against Wexford for breach of
contract and consumer fraud under Illinois law. (Doc. 1, pp. 22-27). He names none of the
individual medical providers he saw at Menard in connection with these claims. Id. All named
defendants are high-ranking officials. (Doc. 1, p. 1). Plaintiff leaves it to the Court to determine
the factual basis of his claims against each of these defendants.

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Discussion
The Complaint violates the pleading standards set forth under Rule 8 of the Federal Rules
of Civil Procedure and discussed in Twombly. Rule 8 requires a Complaint to include “a short
and plain statement of the claim showing that the pleader is entitled to relief” and also “a demand
for the relief sought.” FED. R. CIV. P. 8(a). Rule 8(d) requires that each allegation within the
complaint “must be simple, concise, and direct.” FED. R. CIV. P. 8(d)(1). The allegations must
“actually suggest that the plaintiff has a right to relief, by providing allegations that raise a right
to relief above a speculative level.” Tamayo v. Blagojevich, 526 F.3d 1074, 1084 (7th Cir. 2008)
(emphasis in original). Plaintiff must also plead “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. It is possible to set forth too few factual
allegations to state a plausible claim against the defendants. The purpose of the rules is to “give
defendants fair notice of the claims against them and the grounds for supporting the claims.”
Stanard v. Nygren, 658 F.3d 792, 797 (7th Cir. 2011) (citing Killingsworth v. HSBC Bank Nev.,
N.A., 507 F.3d 614, 618 (7th Cir. 2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)).
In his Complaint, Plaintiff discusses the applicable legal standards for his claims in great
detail. In fact, he devotes nearly his entire statement of claim to recitations of the elements of
each cause of action, legal arguments, and legal citations. (Doc. 1, pp. 1-27). But Plaintiff
cannot rely entirely on conclusory legal statements when pleading his claims. See, e.g., Ashcroft
v. Iqbal, 556 U.S. 662 (2009). Courts are discouraged from accepting “as adequate abstract
recitations of the elements of a cause of action or conclusory legal statements.” Brooks v. Ross,
578 F.3d 574, 581 (7th Cir. 2009). To survive dismissal, a “plaintiff is required to plead more

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than bare legal conclusions.” Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1147 (7th Cir.
2010).
He must set forth facts in support of his claims against the defendants. Plaintiff brings
this action under 42 U.S.C. § 1983. To state a claim in this context, he must demonstrate that an
individual who was acting under color of state law deprived him of a constitutionally protected
right. 42 U.S.C. § 1983; McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir.
1993). Liability under § 1983 requires personal involvement in a constitutional deprivation.
Matz v. Klotka, 769 F.3d 517, 528 (7th Cir. 2014). Plaintiff must name as defendants the
individuals who were responsible for depriving him of his constitutional rights. Id.
He cannot pursue claims against high-ranking officials, simply because their subordinates
may have violated his constitutional rights. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.
2001); Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001). The doctrine of respondeat
superior, or supervisory liability, is not applicable under § 1983. Id. See also Monell v. Dep’t of
Soc. Servs., 436 U.S. 658 (1978); Eades v. Thompson, 823 F.2d 1055, 1063 (7th Cir. 1987);
Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983); Duncan v. Duckworth, 644 F.2d 653,
655-56 (7th Cir. 1981). Plaintiff provides virtually no factual allegations that demonstrate the
personal involvement of the defendants in a deprivation of Plaintiff’s federal constitutional
rights. What few factual allegations he offers in his statement of claim are set forth on pages 913 of the Complaint. (Doc. 1, pp. 9-13). These allegations are generally consistent with the
exhibits. (Doc. 1-1, pp. 1-46). In both, Plaintiff fails to name specific defendants in connection
with any misconduct. At best, he refers to the “defendants” generally and vaguely. Plaintiff
appears to be pursing claims against the high-ranking officials based on their supervisory roles
over the individuals who allegedly denied him adequate medical care. However, Plaintiff has not

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named those individuals as parties in this action, and he cannot proceed against the high-ranking
officials based only on their supervisory role.
Had Plaintiff read the instructions in this Court’s standard civil rights complaint form
when preparing his statement of claim, he might have satisfied Rule 8 and Twombly and
articulated a colorable claim in the process.

The form provides pro se litigants with the

following guidance when preparing a statement of claim:
State here, as briefly as possible, when, where, how, and by whom you feel your
constitutional rights were violated. Do not include legal arguments o[r] citations.
If you wish to present legal arguments or citations, file a separate memorandum of
law. . . .
But Plaintiff did not use the standard civil rights complaint form when preparing his Complaint.
He also demonstrated no understanding of the requirements set forth under Rule 8 and Twombly.
The Court has combed through the Complaint and exhibits for factual allegations that
support a claim against the defendants. Time and again, the Court found lengthy discussions of
the law with no factual allegations pertaining to this case. In place of most factual allegations,
Plaintiff cited exhibits.

Certainly, Plaintiff may file exhibits along with his Complaint.

Documents “attached to the complaint” are “part of the complaint.” Perez v. Fenoglio, 792 F.3d
768, 782-83 (7th Cir. 2015) (citation omitted). However, exhibits should not take the place of
factual allegations, particularly where the exhibits are voluminous, span more than three years,
and cover a broad range of potential claims under federal and state law.
Although this Court must construe a pro se prisoner’s pleadings liberally, the Court
cannot act as Plaintiff’s attorney by crafting claims on his behalf. Haines v. Kerner, 404 U.S.
519, 520-21 (1972). By vaguely referring to his exhibits instead of simply describing what each
defendant did to violate his rights, Plaintiff is asking the Court to do just that. Plaintiff, not the
Court, is the master of his case.
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Under the circumstances, the Court is unable to adequately assess the claims against each
defendant. It is necessary to dismiss the Complaint. However, the dismissal shall be without
prejudice. Plaintiff shall have an opportunity to re-plead his claims in an amended complaint. If
he chooses to pursue his claims any further, Plaintiff must comply with the deadline and
instructions for amending his Complaint herein.
Pending Motion
Plaintiff’s Motion for Leave to Proceed in forma pauperis (Doc. 3) shall be addressed in
a separate court order.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s Complaint (Doc. 1) is DISMISSED
without prejudice for non-compliance with Rule 8 of the Federal Rules of Civil Procedure and
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Plaintiff is GRANTED leave to file an amended complaint on or before December 13,
2017. Should Plaintiff fail to file an amended complaint within the allotted time or seek an
extension of the deadline before it expires, dismissal 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” may 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 standard civil rights complaint form designed for use in this District. He should label the
form “First Amended Complaint” and refer to this case number in the case caption, i.e., Case No.
17-cv-1228-MJR. The First Amended Complaint 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

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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
will be severed into new cases, new case numbers will be assigned, and additional filing fees will
be assessed. Finally, Plaintiff should avoid using conclusory legal statements, legal argument,
and exhaustive discussions of the law in his statement of claim. He should instead focus on
describing what each defendant did to violate his constitutional rights. To enable Plaintiff to
comply with this order, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint
form.
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).
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 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 action was filed, thus the filing fee of $350.00 2 remains due and payable,

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Effective May 1, 2013, the filing fee for a civil case increased from $350.00 to $400.00, by the addition
of a new $50.00 administrative fee for filing a civil action, suit, or proceeding in a district court. See
Judicial Conference Schedule of Fees - District Court Miscellaneous Fee Schedule, 28 U.S.C. § 1914,
No. 14. A litigant who is granted IFP status, however, is exempt from paying the new $50.00 fee.

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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).
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: November 15, 2017

s/ MICHAEL J. REAGAN
Chief District Judge

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