Elbey v. Rhodes et al
ORDER denying Petitioner's Motion for Leave to Amend Complaint (Doc. 13 ). Signed by Judge David W. Dugan on 9/16/2022. (jnh)
Case 3:22-cv-00024-DWD Document 28 Filed 09/16/22 Page 1 of 3 Page ID #269
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
OLAKWESU Y. ELBEY,
KIM RHODES and JAMES JACOBI,
Case No. 3:22-cv-00024-DWD
MEMORANDUM & ORDER
DUGAN, District Judge:
Before the Court is Petitioner’s Motion for Leave to Amend Complaint (Doc. 13).
For the reasons explained below, the Court DENIES that Motion.
On January 6, 2022, Petitioner initiated this case with an Emergency Complaint in
Mandamus/Prohibition (“Complaint”) (Doc. 1). On January 20, 2022, the Court
dismissed Petitioner’s Complaint, without prejudice and with leave to amend on or
before February 20, 2022, because it failed to state a claim for relief under Federal Rule of
Civil Procedure 8 and establish subject matter jurisdiction. (Doc. 1, pg. 2-3). While
Petitioner made many factual allegations, he failed to identify a cause of action or statute
that provided a legal claim. (Doc. 1, pg. 2). Further, while Petitioner demanded specific
relief, he did not provide a legal basis for a grant of relief. (Doc. 1, pg. 2). In his Amended
Complaint, Petitioner was ordered to “clearly state the cause of action or statute
supporting his claims and the basis for the Court’s jurisdiction.” (Doc. 1, pg. 3). Petitioner
was warned that the failure to do so would result in a final dismissal. (Doc. 1, pg. 3).
Case 3:22-cv-00024-DWD Document 28 Filed 09/16/22 Page 2 of 3 Page ID #270
On January 27, 2022, Petitioner again filed an Amended Emergency Complaint in
Mandamus/Prohibition (“Amended Complaint”) (Doc. 8). On March 3, 2022, the Court
dismissed the Amended Complaint for lack of jurisdiction. (Doc. 9). In its Memorandum
& Order, the Court noted that Petitioner’s Amended Complaint “appear[ed] to be an
exact copy of his original complaint.” (Doc. 9, pg. 1). For this reason, the Court again
found that Petitioner failed to establish subject matter jurisdiction. (Doc. 9, pg. 2). In
ordering the dismissal of the Amended Complaint, the Court directed the Clerk to enter
judgment and close the case, which the Clerk did on March 4, 2022. (Docs. 9, pg. 2; 10).
On March 23, 2022, Petitioner filed the Motion for Leave to Amend Complaint that
is presently at issue. (Doc. 13). Five days later, on March 28, 2022, Petitioner appealed the
Court’s March 3, 2022, decision. (Doc. 14). On appeal, Petitioner filed two separate
Motions to Proceed In Forma Pauperis. Each Motion was denied. When denying the
second Motion, the Seventh Circuit found Petitioner “ha[d] not identified a good faith
issue that the district court erred in dismissing his complaint.” Therefore, Petitioner was
ordered to pay the required docketing fee within 14 days or the appeal would be
dismissed for his failure to prosecute. Petitioner did not file the required docketing fee
within 14 days, so the Seventh Circuit dismissed his appeal on August 31, 2022.
By virtue of the foregoing, Petitioner’s Motion for Leave to Amend Complaint is
now ripe for a decision by the Court. In the post-judgment context, which is where the
present case now stands, a plaintiff seeking leave to amend a complaint must first file a
motion under Federal Rule of Civil Procedure 59(e) or 60(b). See Vicom, Inc. v. Harbridge
Merchant Services, Inc., 20 F.3d 771, 784 (7th Cir. 1994) (citing Twohy v. First Nat. Bank of
Case 3:22-cv-00024-DWD Document 28 Filed 09/16/22 Page 3 of 3 Page ID #271
Chicago, 758 F.2d 1185, 1196 (7th Cir. 1985)); Rodriguez v. U.S., 286 F.3d 972, 980 (7th Cir.
2002); Fed. R. Civ. P. 59(e), 60(b). Petitioner has not done so. Therefore, in light of the
present posture of the case, the Court DENIES Petitioner’s Motion for Leave to Amend
Dated: September 16, 2022
DAVID W. DUGAN
United States District Judge
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