Byerly v. Ross Correctional Inst. et al

Filing 26

ORDER granting 23 Defendants' Motion for More Definite Statement; granting 24 Plaintiff's Response seeking leave to file a second amended complaint; denying 24 Plaintiff's Response seeking to serve as a second amended complaint; denying 9 Plaintiff's Motion for Contempt. Plaintiff is ORDERED to file a second amended complaint within fourteen (14) days of this Order. Signed by Magistrate Judge Norah McCann King on 9/18/2013. (er1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

STEPHEN W. BYERLY,
Plaintiff,
vs.

Civil Action 2:13-cv-411
Judge Sargus
Magistrate Judge King

ROSS CORRECTIONAL INST., et al.,
Defendants.

ORDER
This matter is before the Court for consideration of Defendants’
Motion for More Definite Statement (“Defendants’ Motion”), Doc. No.
23.

Defendants argue that the Amended Complaint, Doc. No. 16, is

deficient because, inter alia, it fails to attach exhibits referenced
in the Amended Complaint, attempts to supplement the original
complaint, and violates Fed. R. Civ. P. 10(b) by setting forth all of
plaintiff’s claims in a single paragraph.

Plaintiff, a state inmate

proceeding without the assistance of counsel, has filed a response in
opposition to Defendants’ Motion, Motion in Response in Opposition
Assistant Attorney General for Motion for More Definite Statement
(“Plaintiff’s Response”), Doc. No. 24, which appears to (1) oppose
Defendants’ Motion, (2) seek leave to file a second amended complaint,
and (3) serve as the second amended complaint.

Because Defendants’

Motion and Plaintiff’s Response both contemplate the filing of a
second amended complaint, Defendants’ Motion is GRANTED.

1

To the

extent that Plaintiff’s Response seeks leave to file a second amended
complaint, it is also GRANTED.

To the extent that Plaintiff’s

Response seeks to serve as a second amended complaint, it is DENIED.
The Court cannot discern what portions of plaintiff’s 49 page filing
constitute the proposed second amended complaint.

Plaintiff’s filing

also attempts to supplement, rather than substitute for, his Amended
Complaint, and the filing fails to comply with Fed. R. Civ. P. 10(b).
Accordingly, plaintiff is ORDERED to file a second amended
complaint within fourteen (14) days of this Order.

Plaintiff is

CAUTIONED that the second amended complaint must contain, at a
minimum, “a short and plain statement of the grounds for the court’s
jurisdiction, . . . a short and plain statement of the claim showing
that the pleader is entitled to relief[,] and [] a demand for the
relief sought.”

Fed. R. Civ. P. 8(a).

All claims must also be set

forth in “numbered paragraphs, each limited as far as practicable to a
single set of circumstances,” Fed. R. Civ. P. 10(b), and “[e]ach
allegation must be simple, concise, and direct.”
8(d)(1).

Fed. R. Civ. P.

Moreover, plaintiff is ADVISED that the second amended

complaint will replace the Amended Complaint in its entirety; the
second amended complaint should not supplement or reference the
Amended Complaint.
This matter is also before the Court for consideration of
plaintiff’s motion for a finding of contempt against defendant Charles
Bradley and the Warden of the Ross Correctional Institution, Request
for Court Order Contempt of Court, Doc. No. 9.

2

Plaintiff argues that

defendant Bradley and the Warden violated a court order and denied
plaintiff access to the courts by forcing plaintiff to relinquish his
legal material related to his prior criminal conviction.

Although, as

plaintiff argues, inmates have a constitutional right of access to the
courts, this Court has not issued an order in this case pertaining to
plaintiff’s legal materials.

Plaintiff’s motion for an order of

contempt for violating an order of this Court, Doc. No. 9, is
therefore DENIED.

September 18, 2013

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

3