United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
GILBERT, DISTRICT JUDGE
matter is once again before the Court for preliminary review
of the amended complaint filed by Plaintiff Shaun Kidd on
August 31, 2014. (Doc. 14). Plaintiff has already filed two
versions of his complaint against individual federal
officials to challenge the conditions of his confinement at
the United States Penitentiary located in Marion, Illinois
(“USP-Marion”), under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346, 2671-80.
(Docs. 1, 9). Neither the Complaint (Doc. 1) nor the Amended
Complaint (Doc. 9) survived preliminary review under 28
U.S.C. § 1915A. (Docs. 7, 11). Both were virtually
incomprehensible. (Doc. 1, 9). They also clearly failed to
state a claim under the FTCA. Id.
was granted leave to file a Second Amended Complaint on or
before September 15, 2017. (Doc. 11, p. 5). The Court set
forth specific instructions for properly amending the
complaint. (Doc. 11). Plaintiff was clearly warned that
failure to comply with these instructions or the filing
deadline would result in dismissal of the action with
prejudice and a “strike.” (Doc. 11, pp. 4-5)
(citing Fed.R.Civ.P. 41(b)).
August 31, 2017, Plaintiff filed a document that was labeled
“Second Amended Complaint.” (Doc. 14). Around the
same time, he also filed several other related documents,
including a Motion to Supplement First Amended Complaint
filed August 23, 2017 (Doc. 12); Motion for Order to Compel
Defendants Per Prima Facie Evidence filed August 31, 2017
(Doc. 13); Motion for Supplement to Second Amended Complaint
filed October 2, 2017 (Doc. 17); Motion to Amend the
Complaint Pursuant to Fed.R.Civ.P. 15 filed October 2, 2017
(Doc. 18); Proposed Third Amended Complaint filed October 2,
2017; Motion for Supplement Per Civil Rights Violations filed
October 11, 2017 (Doc. 19).
Court is left to figure out which of these documents was
intended to serve as Plaintiff's operative amended
complaint. It declines to do so. The Court has repeatedly
stated that it “will not accept piecemeal amendments to
the original complaint. Thus, the . . . Amended Complaint
must stand on its own, without reference to any previous
pleading. . . .” (Doc. 7, p. 8; Doc. 11, p. 6).
Plaintiff disregarded this instruction when he prepared and
filed numerous supplements, addendums, and replacements for
his Second Amended Complaint. (Docs. 7, 11, 12-13, 17-19).
All of the proposed supplements, addendums, and motions to
amend shall be denied. (Docs. 12-13, 17, 19).
Court will treat the Second Amended Complaint filed on August
31, 2017, as the operative complaint in this case. (Doc. 14).
It is subject to preliminary review pursuant to 28 U.S.C.
§ 1915A. Under Section 1915A, the Court is required to
dismiss any portion of the pleading that is legally
frivolous, malicious, fails to state a claim upon which
relief may be granted, or asks for money damages from a
defendant who by law is immune from such relief. 28 U.S.C.
§ 1915A(b). The Second Amended Complaint does not
survive preliminary review under this standard.
Review Under 28 U.S.C. § 1915A
Plaintiff abandons his FTCA claims and instead pursues relief
against individual federal officials under Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971). The Court did
not prohibit him from taking this approach. (Doc. 7, 11).
Beyond recasting this case as a Bivens action,
however, Plaintiff offers no coherent allegations in support
of his claims. (Doc. 14, p. 5). The statement of claim
states, in its entirety:
Per the aforemention documents in this instant matter. Avered
it's evident that the matters in question which can't
be skirted around. Have fallen into a reluctance aspect.
These “insensible” matters are those of
[exigency] aspects. As the Defendants have placed their
position to become more oppressive upon being placed on
NOTICE of said deplorable matters. It's now
evident that todays claim holds fruits of averment that they
hold no true interest as to the CONSTITUTIONAL
Rights that Myself or others are still akin to have
despite ending up on the wrong side of the Law per'se.
The Health an Safety aspects in question today are
an will continue to impede upon my respirator an safe
keepings as long as these matters are being secluded from
correction as well as the retaliation aspects as I try to
seek out-side agencies due to the means of exposition that
I'm trying to do. These blind spots align with
the deplorable ventilation systems are ones that
Myself or Anyone else can only PRAY that said
accumulations in question today remain less Health or
Safety position. Despite any sign now there can be
farther damages attached that are (un-noticed) at this time.
Adding with the already ADHD that I have these areas noted
today have made such Mental Anguish even more at
high-stake along with the Physical hardship of
having to endure the Travesty as I am. These
part(ies) upon their NOTICES via individual times as
well as in whole. Have willfully
“brutalized” Myself to stupendous
exacerbate per “intellectual negligence or
deliberate indifference” which can cause harm to
present an future Health aspects etc, . . Such Civil
Rights Violations named today per 28 U.S.C. § 1331. As
within the Bivens v. Six Unknown Fed. Narcotics Agencts, 403
U.S. 388 (1971) is indeed proper per the Constitutional
Rights in question being held in question today. . . .
(Doc. 14, p. 5). The Court would be hard-pressed to pinpoint
a single coherent sentence in the above statement of claim.
Words and phrases sprinkled throughout the document again
suggest that Plaintiff takes issue with the conditions of his
plead an Eighth Amendment claim for unconstitutional
conditions of confinement, an inmate need only allege that
prison officials knowingly denied him “the minimal
civilized measure of life's necessities.”
Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir.
1999). These necessities include adequate shelter, clothing,
and hygiene items, among other things. Gillis v.
Litscher, 468 F.3d 488, 493 (7th Cir. 2006). Plaintiff
must also demonstrate that federal officials exhibited
deliberate indifference to his health or safety. Ziglar
v. Abbasi, __ U.S. __, 137 S.Ct. 1843, 1879 (June 19,
2017) (citing Farmer v. Brennan, 511 U.S. 825, 830,
834 (1994)). Given the above allegations, the Court is unable
to determine whether the conditions at USP-Marion were
objectively serious or find any suggestion that a defendant
responded to the conditions with deliberate indifference.
(Doc. 14, p. 5). Simply put, the Court can discern no basis
for a constitutional claim under the Eighth Amendment and
Bivens against any defendant. The Second Amended
Complaint fails to state a claim upon which relief may be
granted and is therefore subject to dismissal under 28 U.S.C.
§ 1915A and the assessment of a “strike”
under 28 U.S.C. § 1915(g).
IS HEREBY ORDERED that the Second Amended Complaint
(Doc. 14) and this action, which was brought pursuant to the
Federal Tort Claims Act, 28 U.S.C. §§ 1346,
2671-80, and Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971), are DISMISSED with
prejudice for failure to state a claim upon which relief may
be granted. Given that the Court has already screened three
complaints filed by Plaintiff (Docs. 1, 9, 14), the Court
finds that further amendment is futile. Tate v. SCR Med.
Transp., 809 F.3d 343, 346 (7th Cir. 2015). This
dismissal counts as a “strike” under 28 U.S.C.
IS FURTHER ORDERED that all pending motions (Docs.
12, 13, 17, 18, 19, and 21), each of which seeks to
supplement or amend ...