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Dupree v. Pierce

April 4, 2006

CEDRIC DUPREE, PLAINTIFF,
v.
GUY PIERCE, ET.AL., DEFENDANTS



The opinion of the court was delivered by: Harold A. Baker United States District Judge

ORDER

This cause is before the court for consideration of the plaintiff's motion to appoint counsel [d/e 24] and motion for leave to file a second amended complaint. [d/e 25].

BACKGROUND

The plaintiff originally filed this complaint on January 31, 2005 pursuant to 42 U.S.C. §1983 and state tort and negligence law. The plaintiff claimed his constitutional rights were violated at Pontiac Correctional Center. The plaintiff's 42 page handwritten complaint was a rambling account of 14 claims against 62 individual defendants. The plaintiff has also attached hundreds of pages of exhibits. The court could not discern what claims the plaintiff intended to allege against which defendants. Therefore, the court found the complaint was a violation of Rule 8 of the Federal Rules of evidence which require "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2); See also March 1, 2005 Court Order.

The court gave the plaintiff additional time to file an amended complaint with specific instructions to follow. The plaintiff failed to meet this deadline, and his case was dismissed. The plaintiff then filed a motion to reconsider and a notice of appeal. The plaintiff claimed he had in fact sent in an amended complaint and provided a copy of the form he used to request postage from the Department of Corrections. The court gave the plaintiff the benefit of the doubt, and reinstated his case.

The plaintiff has now filed a motion for appointment of counsel and a motion to file a second amended complaint.

MOTION FOR APPOINTMENT OF COUNSEL

The court notes that the plaintiff has another case pending before this court, Dupree v. French, 05 cv 1201. The court found that the plaintiff was unable to represent himself, and the court would attempt to find counsel for the plaintiff. Therefore, the court will also grant plaintiff's motion for appointment of counsel in this case as well and will find counsel to represent the plaintiff.

MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

In hopes of expediting this case, the court will also grant the plaintiff's motion for leave to file a second amended complaint and instruct the clerk of the court to file the submitted complaint. The court is required by 28 U.S.C. §1915A to "screen" the plaintiff's second amended complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it "(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A.

The court notes that it has already provided the plaintiff with specific instructions about what should be included in his complaint and what should not be in his complaint. See March 1, 2005 Court Order. Nonetheless, the plaintiff has ignored most of those directions.

The plaintiff has again named an unwieldily number of defendants. The plaintiff has identified 30 named defendants and six unknown correctional officers. The plaintiff begins his complaint with a "preliminary statement" which is simply a paragraph of broad accusations without any specific dates, defendants or events. (Comp, p. 2)

The plaintiff does state that after he filed this lawsuit, Dr. Garlick told the plaintiff that if he did not drop this litigation, he would kick the plaintiff out of the mental health unit and deny him needed treatment. The plaintiff alleges that Assistant Warden Melvin and Dr. Smith also participated in the decision to kick the plaintiff out of treatment. The plaintiff could not have exhausted his administrative remedies for this claim PRIOR to filing this lawsuit, since he clearly states that the actions occurred AFTER he filed this litigation. The Prison Litigation Reform Act provides:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. ยง1997e(a). See ...


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