United States District Court, S.D. Illinois
MICHAEL A.J. MAYS, Plaintiff,
S. EVANS, Defendant.
REONA J. DALY UNITED STATES MAGISTRATE JUDGE
matter is before the Court for consideration of
Plaintiff's second amended complaint, which the Court
construes as a Motion for Leave to File Second Amended
Complaint (Doc. 28). For the reasons set forth below, the
Motion is GRANTED IN PART AND DENIED IN
Michael Mays filed this lawsuit pursuant to 42 U.S.C. §
1983 alleging his constitutional rights were violated while
he was incarcerated at Menard Correctional Center. In his
complaint, Plaintiff alleges Officer Evans verbally harassed
and then physically assaulted him on December 14, 2015.
Plaintiff's complaint was screened pursuant to 28 U.S.C.
§ 1915A, and he is proceeding on an Eighth Amendment
excessive force claim against Defendant Evans.
filed a first amended complaint, construed by the Court as a
motion for leave to amend, on April 28, 2017 (Doc. 21). Prior
to the entry of an order on his first motion for leave to
amend, Plaintiff filed a second amended complaint, construed
by the Court as a second motion for leave to amend (Doc. 28).
Plaintiff's filing of his second motion for leave to
amend necessarily moots his first motion for leave to amend.
However, Plaintiff's proposed amended complaints are, in
second motion to amend now before the Court, Plaintiff seeks
to include additional claims against Defendant Evans and add
Officer Olson and Warden Kimberly Butler as defendants. More
specifically, Plaintiff seeks to proceed on the following
Count One: First Amendment and Fourteenth Amendment
retaliation claim against Defendant Evans;
Count Two: Eighth Amendment cruel and unusual punishment
claim against Defendant Evans;
Count Three: Fourteenth and Eighth Amendment cruel and
unusual punishment claim against Defendant Olson;
Count Four: Eighth Amendment cruel and unusual punishment
claim against Defendant Butler;
Count Five: Civil conspiracy claim against Defendants Evans,
Olson, and Butler;
Count Six: State law battery claim against Defendant Evans;
Count Seven: State law intentional infliction of emotional
distress claim against Defendants Evans, Olson, and Butler.
Rule of Civil Procedure 15(a) provides that a party may amend
a pleading and that leave to amend should be freely given
"when justice so requires." The Seventh Circuit
maintains a liberal attitude toward the amendment of
pleadings "so that cases may be decided on the merits
and not on the basis of technicalities." Stern v.
U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir. 1977).
The Circuit recognizes that "the complaint merely serves
to put the defendant on notice and is to be freely amended or
constructively amended as the case develops, as long as
amendments do not unfairly surprise or prejudice the
defendant." Toth v. USX Corp., 883 F.2d 1297,
1298 (7th Cir. 1989); see also Winger v. Winger, 82
F.3d 140, 144 (7th Cir. 1996) (quoting Duckworth v.
Franzen, 780 F.2d 645, 649 (7th Cir. 1985)) ("The
Federal Rules of Civil Procedure create [a system] in which
the complaint does not fix the plaintiff's rights but may