Sharp v. Jeffreys et al

Filing 11

ORDER DISMISSING without prejudice 10 Amended Complaint filed by Brett L. Sharp. Amended Complaint due 6/3/2022. Signed by Chief Judge Nancy J. Rosenstengel on 5/6/2022. (anp)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRETT L. SHARP,
Plaintiff,
vs.
ILLINOIS CORRECTIONS and
STATE OF ILLINOIS,
Defendants.

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Case No. 21-cv-787-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Plaintiff Brett L Sharp, an inmate of the Illinois Department of Corrections
(“IDOC”) who is currently incarcerated at Menard Correctional Center, brings this action
for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. On July 8, 2021,
Sharp filed his Complaint alleging an unconstitutional policy denying him access to
publications which either exceeded five pounds in weight or contained “sexually
offensive” material. On March 3, 2022, the Court dismissed his claims without prejudice
for failure to state a claim (Doc. 9). He was granted leave to amend his Complaint, and
on March 30, 2022, filed his Amended Complaint (Doc. 10).
This case is now before the Court for preliminary review of the Amended
Complaint pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to
screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a).
Any portion of a complaint that is legally frivolous, malicious, fails to state a claim upon
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which relief may be granted, or asks for money damages from a defendant who by law
is immune from such relief must be dismissed. 28 U.S.C. § 1915A(b).
The Amended Complaint
In his Amended Complaint, Sharp again alleges that IDOC has an unconstitutional
policy of denying inmates access to publications of a sexual nature to include books,
magazines, or published photos (Doc. 10, p. 6). Sharp alleges that the mailroom
determines what is considered “sexually offensive” in any way and that various books,
including legal books, educational books, and bibles over five pounds, are also refused
(Id.). He seeks injunctive relief in the form of the Court ordering the meaning of
“publications” to be re-evaluated by IDOC and the State of Illinois. In his attached motion
to amend, he alleges that the photos which were rejected included women over the age
of 18 and come with a confirmation that the photos are compliant with statutes and
regulations (Id. at p. 22). His attached mail return slips indicate that some photos were
returned for showing buttocks while others were returned because the age of the model
could not be verified (Id. at pp. 54-65). In a document attached to his Amended
Complaint, labeled a motion to amend, he alleges that he had a number of publications
returned because they were over the weight limit (Id. at p. 20).
Discussion
Once again, Sharp fails to state a claim. In his Amended Complaint he does now
allege that he had books rejected due to them being over the weight limit and points to a
memo establishing a policy of rejecting such materials over five pounds. He also alleges
that he had pictures which were clearly of satisfactory age models which were rejected
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as underaged. Although he now alleges “the arbitrary denial of access to published
materials” which can “violate[] an inmate’s first amendment rights.” Antonelli v. Sheahan,
81 F.3d 1422, 1433 (7th Cir. 1996) (quoting Martin v. Tyson, 845 F.2d 1451, 1454 (7th Cir.
1988) (per curiam), cert. denied, 488 U.S. 863 (1988)), he only sues the State of Illinois and
IDOC. Neither entity is a proper defendant because “neither a State nor its officials acting
in their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989). See also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir.2001) (Eleventh
Amendment bars suits against states in federal court for money damages); Billman v. Ind.
Dep’t of Corr., 56 F.3d 785, 788 (7th Cir.1995) (state Department of Corrections is immune
from suit by virtue of Eleventh Amendment).
Although Sharp initially sued Rob Jeffreys and Warden Anthony Wills, who could
be proper defendants, he asks in his motion to amend to dismiss them from the action
(Doc. 10, p. 22). He fails to include any allegations in his Amended Complaint related to
Jeffreys or Wills. He does not allege that they are in charge of the policies or created the
policies at issue.
Because Sharp does not raise claims against a proper defendant, his Amended
Complaint is also DISMISSED without prejudice. If Sharp had sued proper defendants,
the Court finds that he could potentially state a claim. Accordingly, the Court will allow
Sharp one more chance to submit a viable Amended Complaint. If he chooses to do so,
Sharp must comply with the instructions and deadlines set forth below.

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Disposition
For the reasons stated above, Sharp’s Amended Complaint is DISMISSED
without prejudice. He is GRANTED leave to file a “Second Amended Complaint” on or
before June 3, 2022. Should he fail to file his Second 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). The
dismissal shall count as one of Sharp’s three allotted “strikes” under 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). Thus, the Second Amended Complaint must stand on its own, without
reference to any previous pleading, and Sharp must re-file any exhibits he wishes the
Court to consider along with the Second Amended Complaint. The Second Amended
Complaint is subject to review pursuant to 28 U.S.C. § 1915A.
Sharp 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 remains due and payable,
regardless of whether he elects to file a Second Amended Complaint. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
Finally, Sharp 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
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later than seven 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 6, 2022
____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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