Thornton v. Lashbrook et al

Filing 50

ORDER MOOTING 36 Motion for Leave to File; GRANTING IN PART 40 Motion for Leave to File; DENYING 41 Motion ; DENYING WITHOUT PREJUDICE 43 Motion to Clarify. Signed by Magistrate Judge Donald G. Wilkerson on 11/29/2018. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES E. THORNTON,

)
)
Plaintiff,
)
)
v.
)
)
JACQUELINE LASHBROOK, NEW, JOHN)
DOE, MS. PRICE,
)
)
Defendants.
)

Case No. 3:17-cv-1296-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the Motion for Leave to file Second Amended
Complaint filed by Plaintiff on July 24, 2018 (Doc. 36), the Motion for Leave to File Supplemental
Complaint filed on September 27, 2018 (Doc. 40), the Motion for Notice filed on October 1, 2018
(Doc. 41), and the Motion for Clarification filed on October 18, 2018 (Doc. 43). The motion to
amend is DENIED AS MOOT (Doc. 36), the motion to supplement is GRANTED IN PART
(Doc. 40), the motion for notice is DENIED (Doc. 41), and the motion for clarification is DENIED
WITHOUT PREJUDICE (Doc. 43).
Federal Rule of Civil Procedure 15(a) provides that leave to amend should be freely given
when justice so requires. Leave to amend may be denied, however, if there is “undue delay, bad
faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or
where the amendment would be futile.” Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008).
In his proposed pleadings, Plaintiff seeks to substitute the John Doe party with a named party,
Cindy Gimber. He also is adding a claim, related to his original claim (that his First Amendment
rights were violated when he was denied a copy of “Issue No. 10 of ‘Phat Puffs’ (Spring 2017)

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and ‘Phat Puffs Shotz’” in June 2017), that he was denied a “set of phat puffs no nudity shotz” in
February 2018. Defendants’ only argument in response is that Plaintiff is attempting to seek
piecemeal amendment of his complaint, a procedure that is not favored.

See Flannery v.

Recording Indus. Ass’n of Am., 354 F.3d 632 n.1 (7th Cir. 2004). Defendants’ point is well taken,
and Plaintiff’s motion for notice is accordingly DENIED and his motion for clarification is
DENIED AS MOOT. If Plaintiff wishes to amend his complaint, he shall file a motion to amend
consistent with Rule 15 and Local Rule 15.1. However, Plaintiff’s “supplemental complaint” is
in fact an amended complaint as it contains all the details required by Federal Rule of Civil
Procedure 8. Defendant has made no argument that would caution to the Court to deny the motion
in light of Rule 15’s liberal pleading requirements. As such, Plaintiff’s first motion to amend is
deemed MOOT and his second motion, which is in fact a request to amend, is GRANTED as
such. Plaintiff shall now proceed on two claims:
Count 1 - First Amendment claim against Defendants for denying Plaintiff’s
request for a copy of Issue No. 10 of “Phat Puffs” (Spring 2017) and “Phat Puffs
Shotz.”
Count 2 - First Amendment claim against Defendants for denying Plaintiff’s
request for a copy of a “set of phat puffs no nudity shotz” requested in February
2018.
The Clerk of Court is ORDERED to file Plaintiff’s Second Amended Complaint (attached
to Doc. 40) and to initiate service of process on the new Defendant, Cindy Gimber. To that end,
the Clerk of Court shall prepare for Defendant Gimber: (1) Form 5 (Notice of a Lawsuit and
Request to Waive Service of a Summon) and (2) Form 6 (Waiver of Service of Summons). The
Clerk is DIRECTED to mail these forms and copies of the second amended complaint and this
Order to Defendant’s places of employment as identified by Plaintiff. If Defendant fails to sign
and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date

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the forms were sent, the Clerk shall take appropriate steps to effect formal service on Defendant,
and the Court will require Defendant to pay the full costs of formal service, to the extent authorized
by the Federal Rules of Civil Procedure.
DATED: November 29, 2018

DONALD G. WILKERSON
United States Magistrate Judge

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