Smith v. Frame

Filing 14

ORDER signed by Judge J.P. Stadtmueller on 2/13/2018 re 13 Amended Complaint. By 2/27/2018, Plaintiff to FILE a second amended complaint in accordance with this Order, or this action will be dismissed without prejudice. See Order for further details. (Attachments: # 1 Prisoner pro se complaint form and guide) (cc: all counsel, via mail to Virgil Smith at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VIRGIL SMITH,
Plaintiff,

v.

Case No. 17-CV-1745-JPS

B. FRAME,
Defendant.

ORDER

On January 19, 2018, the Court screened Plaintiff’s eighty-eight page
Complaint, which appeared to allege a violation of the First Amendment.
(Docket #12 at 3). The Court determined that the Complaint violated
Federal Rule of Civil Procedure 8(a)(2), which states that pleadings should
provide a “short and plain statement of the claim showing that the pleader
is entitled to relief. Id. at 3-4. It ordered Plaintiff to file an amended
complaint which complied with that Rule on or before February 9, 2018. Id.
at 4. Plaintiff filed his Amended Complaint on February 6, 2018. (Docket
#13). It must now be screened. 28 U.S.C. § 1915A(a). All of the standards
announced in the initial screening order (Docket #12 at 1-3) apply here.
Plaintiff’s Amended Complaint still runs afoul of Rule 8(a)(2).
Though it is now twenty-six pages, with sixty-seven pages of exhibits, the
Amended Complaint is mostly comprised of legal argument, just as with
the original Complaint. (Docket #13 at 3-22). The Court has already
instructed Plaintiff that this material is inappropriate for a complaint.
(Docket #12 at 4). Complaints need only contain factual material which,
taken as true, states a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). There is a sprinkling of factual allegations throughout the

Amended Complaint, but those facts are difficult to separate from the other
extraneous material. In other words, while Plaintiff’s Amended Complaint
is certainly shorter than his original Complaint, it is still neither “short” nor
“plain” as contemplated by Rule 8(a)(2).
Plaintiff will be afforded one final opportunity to provide a proper
pleading. If he chooses to offer a second amended complaint, Plaintiff must
do so no later than February 27, 2018. This District’s Local Rules require pro
se prisoner litigants to use the standard Section 1983 complaint form when
filing civil rights actions. Civ. L. R. 9(b). The Court rarely enforces this Rule,
but given Plaintiff’s pleading difficulties, it will do so now. His second
amended complaint must be filed using the standard form. The Court
previously provided a copy of the form to him, but will also send an
additional copy with this Order. As it did in the initial screening order, the
Court again notes that Plaintiff appears to present a straightforward claim
against a single defendant with a limited factual basis. The form should
provide adequate space to state such a claim. If Plaintiff fails to file a second
amended complaint by the above-stated deadline, or files one which does
not comply with the Court’s instructions herein, this action will be
dismissed without prejudice.
The amended complaint supersedes the prior complaint and 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 Seventh Circuit 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); see also
Pintado v. Miami-Dade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007)
(“As a general matter, ‘[a]n amended pleading supersedes the former
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pleading; the original pleading is abandoned by the amendment, and is no
longer a part of the pleader’s averments against his adversary.’”) (quoting
Dresdner Bank AG, Dresdner Bank AG in Hamburg v. M/V OLYMPIA
VOYAGER, 463 F.3d 1210, 1215 (11th Cir. 2006)). If a second amended
complaint is received, it will be screened pursuant to 28 U.S.C. § 1915A.
Accordingly,
IT IS ORDERED that on or before February 27, 2018, Plaintiff shall
file a second amended complaint curing the defects in the first amended
complaint as described herein, or this action will be dismissed without
prejudice.
Dated at Milwaukee, Wisconsin, this 13th day of February, 2018.
BY THE COURT:

_____________________________
J. P. Stadtmueller
U.S. District Judge

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