Rivers v. Armor Correctional Staff et al

Filing 8

ORDER signed by Judge Pamela Pepper on 5/22/2017 GRANTING 2 Plaintiff's motion for leave to proceed without prepayment of the filing fee and GRANTING 7 Plaintiff's letter request to file an amended complaint. The court ORDERS that the amended complaint should be filed in time for the court to receive it on or before 6/30/2017. (cc: all counsel; by US Mail to plaintiff)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DESHIREO TYVEONCE RIVERS,
Plaintiff,
v.

Case No. 17-cv-459-pp

ARMOR CORRECTIONAL STAFF, et al.,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND GRANTING
PLAINTIFF’S LETTER MOTION FOR LEAVE TO FILE AMENDED
COMPLAINT (DKT. NO. 7)
______________________________________________________________________________
On March 30, 2017, the plaintiff filed a complaint, dkt. no. 1, along with
a motion for leave to proceed without prepayment of the filing fee, dkt. no. 2.
The Prison Litigation Reform Act applies to this case, because the plaintiff was
incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows a
court to give an incarcerated plaintiff the opportunity to proceed without
prepaying the full case filing fee, as long as he meets certain conditions. One of
those conditions is a requirement that the plaintiff pay an initial partial filing
fee. 28 U.S.C. §1915(b).
On April 7, 2017, the court ordered the plaintiff to pay an initial partial
filing fee of $41.61. Dkt. No. 6. On April 24, 2017, the court received that
partial filing fee from the plaintiff. Accordingly, the court will grant the
plaintiff’s motion to proceed without prepayment of the full filing fee. The court

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will require the plaintiff to pay the remainder of the filing fee over time in the
way explained at the end of this order.
The law requires the court to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or employee of a
governmental entity. 28 U.S.C. §1915A(a). Normally, at this stage, the court
would now screen the complaint the plaintiff filed on March 30, 2017. But on
April 27, 2017, the plaintiff filed a letter indicating that he would like to amend
his complaint, and asking the court to explain the process for doing so. Dkt.
No. 7.
Federal Rule of Civil Procedure 15(a)(1) allows a plaintiff to amend his
complaint one time without the court’s permission1 as long as he does so
within twenty-one days of serving the complaint. If the plaintiff asks to amend
the complaint more than twenty-one days after filing the original complaint, he
needs the court’s permission. The court received the plaintiff’s letter about
amending the complaint twenty-eight days after he filed his original complaint,
so it appears that he needs court permission to amend. The court construes
the letter it received on April 27, 2017 as a motion for leave to amend the
complaint.
The letter does not explain why the plaintiff wants to amend the
complaint. But the court has not yet ordered the Marshal’s Service to serve the
complaint on the defendants (because the court had not yet screened the

 If the plaintiff desires to amend his complaint a second time at some later
date, he will be required to file a motion to obtain the court’s permission and
otherwise comply with Civil L.R. 15.  
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original complaint). And he filed his motion to amend less than a month after
filing the original complaint, so there has been no significant delay in
processing the case. The court will grant the plaintiff’s request, and will allow
him to file an amended complaint. Once the court receives the amended
complaint, the court will screen it as required by 28 U.S.C. §1915A.
An amended complaint takes the place of the prior complaint, so it must
be complete in itself, without reference to the original complaint. See Duda v.
Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57
(7th Cir. 1998). In Duda, the appellate court emphasized that in such
instances, the “prior pleading is in effect withdrawn as to all matters not
restated in the amended pleading[.]” Id. at 1057 (citation omitted). The plaintiff
should, using the court’s complaint form, lay out all the grounds he wishes to
raise (including the ones he raised in his original complaint), and the facts that
make him believe he should succeed on those claims. He must include the
docket number assigned to this case (17-cv-459). At the top of the first page of
the complaint form, where the court form says “COMPLAINT (for filers who are
prisoners without lawyers),” the plaintiff should write in the word “AMENDED”
before the word “COMPLAINT.”
Finally, the court reminds the plaintiff that 42 U.S.C. §1983 “creates a
cause of action based on personal liability and predicated upon fault; thus
liability does not attach unless the individual defendant caused or participated
in a constitutional violation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996).
This means that the plaintiff must explain in his complaint exactly why he
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believes that each defendant harmed him, and how that defendant harmed
him. The doctrine of respondeat superior does not apply to cases filed under 42
U.S.C. §1983. See Pacelli v. deVito, 972 F.2d 871, 877 (7th Cir. 1992). This
means that the law does not allow a judge or jury to find a supervisor or
employer liable solely because they were a supervisor or employer; the
complaint must show that the particular supervisor or employer directly
caused or participated in the alleged wrongdoing. Similarly, §1983 does not
create collective or vicarious responsibility. Id. In other words, neither a court
nor a jury may hold a person liable or responsible for someone else’s
misconduct.
In short, with respect to any claim or claims the plaintiff brings in his
amended complaint, he must identify the individual defendants and specify
how their actions, or their failure to take action, violated his constitutional
rights.
If the plaintiff still wants to file an amended complaint, he must file it in
time for the court to receive it by the end of the day on June 30, 2017. If the
court does not receive an amended complaint by the deadline, the court will
screen the plaintiff’s original complaint.
The court GRANTS the plaintiff’s motion to proceed without prepayment
of the full filing fee. Dkt. No. 2.
The court GRANTS the plaintiff’s letter motion for leave to file an
amended complaint. Dkt. No. 7. The court ORDERS that the plaintiff may file
an amended complaint in time for the court to receive it on or before June 30,
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2017. If the plaintiff does not file an amended complaint by the deadline, the
court will screen the plaintiff’s original complaint.
The court ORDERS that the agency having custody of the plaintiff shall
collect from his institution trust account the $308.39 balance of the filing fee,
by collecting monthly payments from the plaintiff's prison trust account in an
amount equal to 20% of the preceding month's income credited to the
prisoner's trust account, and forwarding payments to the Clerk of Court each
time the amount in the account exceeds $10 in accordance with 28 U.S.C. §
1915(b)(2). The agency shall clearly identify the payment by the case name and
number. If the plaintiff is transferred to another institution—county, state or
federal—the transferring institution shall forward a copy of this order, along
with plaintiff's remaining trust account balance, to the receiving institution.
The court will send a copy of this order to the officer in charge of the
agency where the inmate is confined and to Dennis Brand at the Milwaukee
County Jail.

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The court also ORDERS the plaintiff to submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS.
It will only delay the processing of the case.
Dated in Milwaukee, Wisconsin, this 22nd day of May, 2017.

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