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Dickey v. Harrington

United States District Court, S.D. Illinois

June 12, 2015

MAECEO DICKEY, Plaintiff,
v.
RICHARD HARRINGTON, NICHOLAS BEBOUT, C/O HOLMES, DAVID EALEY, and REBECCA STEFANI, Defendants.

ORDER

DONALD G. WILKERSON United States Magistrate Judge

Now pending before the Court are the Motion to Amend Complaint filed by Plaintiff, Maeceo Dickey, on December 19, 2015 (Doc. 37) which is GRANTED, the Motion for an Order Compelling Discovery filed by Plaintiff on March 12, 2015 (Doc. 51) which is DENIED, the Motion for Recruitment of Counsel filed by Plaintiff on March 16, 2015 (Doc. 53) which is DENIED, the Motion for Protective Order filed by Plaintiff on April 16, 2015 (Doc. 58) which is DENIED, the Motion to have Witnesses Subpoenaed filed by Plaintiff on April 24, 2015 (Doc. 62) which is DENIED WITHOUT PREJUDICE, and the Motion to Appoint Counsel filed by Plaintiff on June 9, 2015 (Doc. 65) which is DENIED. Also before the Court are “Admission to establish basic facts” filed by Plaintiff on April 10, 2015 (Doc. 57) and “Declarations” filed by Plaintiff on January 21, 2015 (Doc. 44) and March 11, 2015 (Doc. 52), respectively which are STRICKEN.

Admission (Doc. 57) and Declarations (Docs. 44 and 52)

The Declarations (Docs. 44 and 52) are statements of evidence -- what witnesses Plaintiff believes would be helpful to his case and information as to the grievance process. The Admission (Doc. 57) further appears to be a statement as to evidence and interrogatories to Defendants. Such information should not be filed with the Clerk of Court but should be served upon Defendants. Plaintiff is reminded that he does not need to file discovery in this case with the Clerk of Court unless specifically instructed by the Court. Plaintiff is directed to the Scheduling Order (Doc. 64). These three documents are accordingly STRICKEN (Docs. 44, 52, and 57). Motion to Amend (Doc. 37)

This Motion is GRANTED. Federal Rule of Civil Procedure 15(a)(1) provides that Plaintiff may amend his pleading once as a matter of course during two specified time periods, within 21 days of service of the complaint, or within 21 days of service of the answer. Plaintiff filed this motion in between those two time periods, on December 19, 2014. Accordingly, he correctly filed a Motion. Rule 15(a)(2) provides that a pleading may be amended by leave of court and that “the court should give leave when justice so requires.” Leave may be denied if “the moving party unjustifiably delayed in presenting its motion to the court, repeatedly failed to cure deficiencies, or if the amendment would be futile.” Gandhi v. Sitara Capital Management, LLC., 721 F.3d 865, 868-869 (7th Cir. 2013).

Plaintiff seeks to amend his complaint to replace Defendant Holmes with “C/O Harris.” In all other respect, the proposed amended complaint appears identical to the original complaint. In light of this amendment, Plaintiff is hereby proceeding on the following claims, which the parties will refer to in any future pleadings/motions:

Count 1: Eighth Amendment claim against Defendants Ealy, Bebout, and C/O Harris for using excessive force against Plaintiff on or about October 17, 2013, and against Defendant Harrington for condoning the practice of using excessive force against Menard prisoners;
Count 2: Eighth Amendment deliberate indifference claim against Defendant Nurse Stephanie, for refusing to examine Plaintiff for injuries immediately following the beating on October 17, 2013.
Count 3: Assault/battery claim against Defendants Ealy, Bebout, and Harris for physically assaulting Plaintiff on or about October 17, 2013;
Count 4: Claim for intentional infliction of emotional distress against Defendants Ealy, Bebout, and Harris for beating Plaintiff on or about October 17, 2013, and against Defendant Harris for threatening Plaintiff with bodily harm if he reported the assault.

These claims are identical to those set forth by the District Court on October 16, 2014 with the only change being the substitution of Harris for C/O Holmes.

The Clerk of Court is DIRECTED to docket the Amended Complaint submitted on December 19, 2015. Defendants shall file a responsive pleading within the time provided by Rule 15. The Clerk of Court shall prepare for Defendant C/O Harris: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summon) and (2) Form 6 (Waiver of Service of Summons).

The Clerk is DIRECTED to mail these forms and copies of the amended complaint and this Memorandum and Order to Defendant’s places of employment as identified by Plaintiff. If Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to effect formal service on Defendant, and the Court will require ...


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