WHITAKER v. SCI-FAYETTE et al
ORDER denying 74 Plaintiff's Motion to Waive Amended Complaint. Plaintiff shall amend his complaint as described herein and file it with the Court by September 1, 2022. Plaintiff shall clearly mark his complaint "Third Amended Complaint&q uot; and include the case number 2:22-cv-38 in the top right corner. Any claim not included in the third amended complaint will be deemed waived. Plaintiff shall provide service copies of the third amended complaint for each named defendant. This means that Plaintiff must complete accurate, identical copies of the third amended complaint for EACH defendant named in the third amended complaint. Signed by Magistrate Judge Lisa Pupo Lenihan on August 2, 2022. (kcb)
Case 2:22-cv-00038-WSH-LPL Document 75 Filed 08/02/22 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAMION D. WHITAKER,
SCI-FAYETTE, et al.,
Civil Action No. 2:22-cv-38
District Judge W. Scott Hardy
Magistrate Judge Lisa Pupo Lenihan
Plaintiff has filed what is titled “ORDER Thereforth of Waiver,” but what has been
construed and docketed as a Motion to Waive Amended Complaint. (ECF No. 74.) Plaintiff
states that he is “requesting a waiver of amended complaint number two” to “avoid an amended
complaint order number three,” and he references ECF No. 68, which is this Court’s Order
requiring Plaintiff to file a third amended complaint by August 5, 2022. To the extent Plaintiff is
asking this Court to strike his Second Amended Complaint and to proceed with his First
Amended Complaint, his Motion will be denied. On June 27, 2022, Plaintiff was ordered to file
a second amended complaint because he was attempting to add claims to his first amended
complaint by filing supplements. See ECF No. 65. The Court informed Plaintiff that he could
not keep amending his complaint by filing supplements to add claims and parties and instructed
him that he needed to set forth all of his claims in one complete document. Id. Plaintiff,
however, failed to comply with this Court’s Order when he drafted his Second Amended
Complaint, hence the Court’s Order at ECF No. 68 that directed Plaintiff to file a third amended
complaint. Plaintiff has not yet provided this Court with a properly drafted complaint despite the
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fact that the Court has provided Plaintiff with instructions on how to draft such a complaint on
numerous occasions. Plaintiff will be given one final opportunity to comply. Once again, he is
reminded that his third amended complaint must be a complete document. This means that it
must include every cause of action that he is bringing and name every defendant that he is suing.
And, most importantly, it must NOT refer back to, or incorporate by reference, any previously
filed complaint. As previously explained, once an amended complaint is filed, it supersedes and
renders the previously filed operative complaint a nullity. See Garrett v. Wexford Health, 938
F.3d 69, 82 (3d Cir. 2019). Plaintiff should pay careful attention to the below instructions when
drafting his third amended complaint, which should be titled “Third Amended Complaint.”
Instructions for Filing an Amended Complaint
Caption and Heading
The caption should include the name of the court, the parties, their capacities (i.e.,
whether they are being sued in their individual or representative (official) capacity), and the title
of the pleading (i.e., Amended Complaint). To do this, Plaintiff must place his full name at the
top left of the amended complaint and also add the names of each defendant. Plaintiff must
name as defendants only those persons who are responsible for the alleged constitutional
As the person initiating the lawsuit, Plaintiff must identify himself as such. Also, for
each defendant named in the amended complaint, Plaintiff should list their current address and
Plaintiff should only name defendants who had personal involvement in the alleged
wrongdoing. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“A defendant in a
civil rights action must have personal involvement in the alleged wrongs”). If Plaintiff is
unaware of a defendant’s name, then he may list them as a John or Jane Doe.
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description of their employment. In addition, Plaintiff should explain briefly how or in what
capacity each defendant acted under authority given to them by state or local government.
Because federal court is a court of limited jurisdiction, Plaintiff must inform the Court
why the case should be heard in federal court rather than state court or some other forum. If
Plaintiff’s action is generally one for a violation of civil rights, 42 U.S.C. § 1983 will normally
be the basis for the claim. In order for Plaintiff’s action to be heard in federal court under
Section 1983, he must be able to show that the defendant(s), at the time of the claims alleged in
the amended complaint, were acting under the authority or color of state law.
Statement of Claim
This is the time to present the facts of the case: what happened, where it happened, when
it happened, how it happened and who was involved. In this section, Plaintiff should write a
summary of the facts relevant to this lawsuit. Additionally, any document referred to in this
section must be cited as an exhibit and attached at the end of the amended complaint.
In this section, Plaintiff must provide specific details of precisely how his civil rights
were allegedly violated. Plaintiff should note that, in civil rights cases, more than conclusory
and vague allegations are required to state a cause of action under 42 U.S.C. § 1983. Plaintiff
should clearly describe how each named defendant is involved in the alleged constitutional
violation(s). This description should include references to relevant dates, times, and locations.
It should explain to the Court what happened by specifically describing each defendant’s
behavior or action and how that behavior or action – or lack of action – resulted in the alleged
violations. Plaintiff should not include legal argument in his amended complaint. Citations to
case law and other statutes are not appropriate in the complaint, but rather may be included in a
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response to a dispositive motion or at the time of trial. However, Plaintiff should be specific
about the particulars of the event, each defendant’s misconduct, and how such misconduct
resulted in a violation or denial of the civil right at issue.
Where the amended complaint includes more than one incident, Plaintiff should clearly
distinguish between them by preparing a separate description – usually a paragraph – for each
incident. Each incident should be identified as a separate count, and each count must include
appropriate facts and evidence in support of the claims made in the count. Each incident must be
clearly and specifically described; it should include the relevant time, date, and location. Each
incident description also should clearly identify the relevant defendant and what that defendant’s
role was in the incident. Additionally, the amended complaint should set forth factual allegations
that, taken together, satisfy the elements of the cause of action.
Plaintiff must state as specifically as possible the actual injury suffered from the action of
the defendants that resulted in the alleged civil rights violation. Simply stating that his civil
rights have been violated is insufficient.
Request for Relief
Plaintiff must describe for the Court the relief he is seeking as a result of this lawsuit.
The relief requested must be related specifically to the injury suffered. However, Plaintiff should
be aware that 42 U.S.C. § 1997e(e) limits a prisoner’s ability to pursue a federal civil action for
mental or emotional injuries suffered while in custody.
Exhaustion of Administrative Remedies
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Plaintiff should be aware that under 42 U.S.C. § 1997e(a), he must fully exhaust all
available administrative remedies before pursuing a civil rights complaint concerning prison
Plaintiff must alert the Court to any other case in which he was a party that may be
connected with the case he is now filing. Plaintiff should inform the Court of any and all
previously filed cases that include some of the same facts and events he relies on for this case.
Declaration Under Penalty of Perjury
Federal Rule of Civil Procedure 11 provides that every pleading, written motion, and
other paper must be signed by an individual attorney of record or by the pro se party. Therefore,
Plaintiff must sign his amended complaint and when doing so he is making a declaration under
law to the Court that everything in the amended complaint is true. Plaintiff should realize that
the Court can order sanctions or penalties for the filing of complaints and pleadings that are
frivolous, without merit, based on false or misleading information, etc. These sanctions or
penalties can take many forms including, but not limited to, dismissing the case, assessing fines,
and limiting Plaintiff’s filing privileges in federal court.
AND NOW, this 2nd day of August, 2022;
IT IS HEREBY ORDERED that Plaintiff’s Motion to Waive Amended Complaint
(ECF No. 74) is DENIED.
IT IS FURTHER ORDERED that Plaintiff shall amend his complaint as described
herein and file it with the Court by September 1, 2022. Plaintiff shall clearly mark his
complaint “Third Amended Complaint” and include the case number 2:22-cv-38 in the top
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right corner. Any claim not included in the third amended complaint will be deemed
AND IT IS FURTHER ORDERED that Plaintiff shall provide service copies of the
third amended complaint for each named defendant. This means that Plaintiff must complete
accurate, identical copies of the third amended complaint for EACH defendant named in the
third amended complaint.
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge
Damion D. Whitaker
50 Overlook Drive
LaBelle, PA 15450
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