Hopkins v. Reed et al

Filing 10

MEMORANDUM AND ORDER: IT IS HERE BY ORDERED that plaintiff's motion to reconsider this Court's September 10, 2013 Order of Dismissal for failure to exhaust his prison grievances prior to bringing this action [Doc. #9] is GRANTED. IT IS FURT HER ORDERED that the Clerk of Court shall reopen this case.IT IS FURTHER ORDERED that the Clerk of Court shall mail plaintiff a copy of the Court's form for filing a prisoner complaint pursuant to 42 U.S.C. § 1983.IT IS FURTHER ORDERED that plaintiff shall file an amended complaint on or before November 2, 2013, in accordance with the specific instructions set forth above. IT IS FURTHER ORDERED that plaintiff's failure to amend his complaint in accordance with this Court's in structions will result in the dismissal of this action, without prejudice and without further notice to him. ( Amended/Supplemental Pleadings due by 11/4/2013.), Case reopened. ((prisoner civil rights forms forwarded to Mr. Hopkins). Signed by District Judge Jean C. Hamilton on 10/2/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
LARRY L. HOPKINS,
Plaintiff,
v.
UNKNOWN REED, et al.,
Defendants.

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No. 1:13-CV-126-LMB

MEMORANDUM AND ORDER
Before the Court is plaintiff's motion to reconsider this Court’s September 10,
2013 Order of Dismissal for failure to exhaust his prison grievances prior to bringing
this action [Doc. #9]. For the following reasons, the Court will grant the motion and
plaintiff will be instructed to file an amended complaint.
Background
Plaintiff is an inmate at the Southeast Correctional Center ("SECC"). He filed
this action in August 2013, seeking monetary and injunctive relief pursuant to 42
U.S.C. § 1983. The named defendants were SECC correctional officers Unknown
Reed, Unknown Thurston, Unknown Cooper, and Unknown Irby. Plaintiff alleged
that in September 2012, defendants used excessive force against him, were
deliberately indifferent to his serious medical needs, and retaliated against him for

filing a complaint. In addition, plaintiff filed a motion to stay this action on the
ground that he was "waiting for the final exhaustion in the prison grievance process."
Plaintiff stated that he was "submitting [his] complaint at this time for [a] file
number," because his time for filing was running.
On November 10, 2013, this Court granted plaintiff in forma pauperis status.
Noting that plaintiff conceded he had not exhausted his available administrative
remedies before filing his complaint, the action was dismissed for failure to exhaust
prison grievances under 42 U.S.C. § 1997e(a). Plaintiff's motion for stay was denied
as moot.
In the instant motion for reconsideration, plaintiff states, "There has been a big
mistake here." He claims that "the mistake was [he] . . . used improper language" and
that he had, in fact, exhausted all available prison grievances prior to filing this
action. Under these circumstances, the Court will grant plaintiff’s motion and will
instruct the Clerk of Court to reopen this case.
In addition, the Court will order plaintiff to file an amended complaint on a
court-provided form.1

In so doing, plaintiff should select the transaction or

occurrence he wishes to pursue, in accordance with Rule 20 of the Federal Rules of
The Court will instruct the Clerk to mail plaintiff a blank form complaint
for the filing of a prisoner civil rights action. Plaintiff must complete his amended
complaint on the court-provided form.
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Civil Procedure,2 and file an amended complaint, limiting his facts and allegations to
the defendant(s) involved in said occurrence. Plaintiff should only include in his
amended complaint those claims that arise out of the same transaction or occurrence,
or series of transactions or occurrences. See Fed.R.Civ.P. 20(a)(2).
Having decided upon the transaction(s) or occurrence(s) he wishes to pursue,
plaintiff shall set forth in the "Caption" of the complaint the name of each defendant
he wishes to sue; and in the "Statement of Claim," plaintiff shall start by typing the
first defendant’s name, and under that name, he shall set forth in separate numbered
paragraphs the allegations supporting his claim(s) as to that particular defendant, as
well as the right(s) that he claims that particular defendant violated. Plaintiff shall
proceed in this manner with each of the named defendants, separately setting forth
each individual name and under that name, in numbered paragraphs, the allegations
specific to that particular defendant and the right(s) that he claims that particular
defendant violated.
The amended complaint must contain short and plain statements showing that
Rule 20(a)(2) of the Federal Rules of Civil Procedure provides:
Persons . . . may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising
out of the same transaction, occurrence, or series of
transactions or occurrences; and (B) any question of law
or fact common to all defendants will arise in the action.

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plaintiff is entitled to relief, the allegations must be simple, concise, and direct, and
the numbered paragraphs must each be limited to a single set of circumstances. See
Fed.R.Civ.Pro. 8 and 10. In this regard, the Court would prefer that plaintiff not
attach exhibits to the amended complaint; to support his claims, plaintiff should
include relevant allegations in the body of his amended complaint. Moreover, to the
extent that plaintiff is attempting to demonstrate exhaustion of prison grievances, he
need not attach exhibits, as he has already stated that he is in compliance, and thus,
at this time, there is no reason to attach prison grievances to his pleading. Plaintiff
will have the opportunity to produce exhibits in accordance with the Court’s Case
Management Order, which will be issued after all defendants have responded to the
amended complaint.
In addition, plaintiff shall set forth in the amended complaint the capacity (i.e.,
official and/or individual) in which he is suing each of the named defendants. If
plaintiff needs more space, he may attach additional sheets of paper to the amended
complaint and identify them as part of the "Caption" or "Statement of Claim."
Plaintiff shall sign the amended complaint. Because the Court is allowing plaintiff
to amend his complaint, it will take no action as to the named defendants at this time.
Plaintiff is reminded that his amended complaint will supersede his original
complaint and will be the only complaint this Court reviews.
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Accordingly,
IT IS HEREBY ORDERED that plaintiff's motion to reconsider this Court’s
September 10, 2013 Order of Dismissal for failure to exhaust his prison grievances
prior to bringing this action [Doc. #9] is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall reopen this case.
IT IS FURTHER ORDERED that the Clerk of Court shall mail plaintiff a
copy of the Court's form for filing a prisoner complaint pursuant to 42 U.S.C. § 1983.
IT IS FURTHER ORDERED that plaintiff shall file an amended complaint
on or before November 2, 2013, in accordance with the specific instructions set
forth above.3
IT IS FURTHER ORDERED that plaintiff's failure to amend his complaint
in accordance with this Court's instructions will result in the dismissal of this action,
without prejudice and without further notice to him.
Dated this 2nd day of October, 2013.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

For his amended complaint, plaintiff shall use the court-provided form for
filing a complaint pursuant to 42 U.S.C. § 1983.
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