United States District Court, S.D. Illinois
JONATHAN W. BOHN, # 08570-025, Plaintiff,
LT. DUGDALE, and DR. SEARS, Defendants.
MEMORANDUM AND ORDER
PHIL GILBERT UNITED STATES DISTRICT JUDGE.
matter is before the Court for consideration of
Plaintiff's motion (Doc. 13) filed on February 20, 2018.
It is apparent from this document that Plaintiff has failed
to understand the Court's instructions regarding filing
an amended complaint. The Court shall therefore grant
Plaintiff another opportunity to submit a complete amended
complaint (to be labeled “Second Amended
Complaint”) in order to present all his allegations in
a single document.
the Court reviewed Plaintiff's original Complaint (Doc.
1) and determined that it failed to state a constitutional
claim upon which relief may be granted. (Doc. 7, December 18,
2017). In that Order, Plaintiff was directed to file his
First Amended Complaint by January 16, 2018, if he wished to
proceed with his constitutional claims. He was instructed
that piecemeal amendments are not acceptable, and his amended
complaint must contain all the allegations to support his
claims. Plaintiff was also instructed that if he wished to
bring a claim pursuant to the Federal Tort Claims Act
(“FTCA”), he must be sure to exhaust his
administrative tort claim remedies before doing so. He was
directed to advise the Court if he had not yet exhausted his
tort claim remedies, so that any FTCA claim could be
dismissed from this action without prejudice (to allow for
later re-filing subsequent to exhaustion). The Court sent
Plaintiff a blank complaint form. The Order also denied
Plaintiff's request for an order allowing him to access
the law library (Doc. 4), because legal argument or citations
are not required in a complaint; only factual allegations
should be included.
same day the December 18, 2017, Order (Doc. 7) was entered,
the Court received Plaintiff's “Supplement; Motion
of Negligence, ‘Complaint, '” which was
docketed as Doc. 6. This Supplement included factual
allegations which Plaintiff had not presented in the original
Complaint. Plaintiff had submitted it before he received the
Order at Doc. 7. The Court entered another Order (Doc. 8)
informing Plaintiff that the “Supplement” had
been received but would not be considered because it amounted
to an attempt to add to his pleading in a piecemeal manner.
Plaintiff was advised to follow the instructions in the Order
at Doc. 7 in order to prepare his First Amended Complaint.
January 2, 2018, the Court received Plaintiff's First
Amended Complaint (Doc. 10). While the merits review of this
pleading has not yet been completed, the Court observes that
it does not contain any of the material Plaintiff
had previously offered in his “Supplement” at
Doc. 6, and does not include any of the allegations from the
original Complaint. The First Amended Complaint indicates
that Plaintiff submitted a tort claim, but says that there
was no response. (Doc. 10, p. 4).
newest submission (the motion at Doc. 13) includes additional
factual allegations, which Plaintiff labels “Stipulated
Facts.” (Doc. 13, pp. 2-3). Again in this document,
Plaintiff asserts that he was the victim of an “act of
negligence.” (Doc. 13, p. 2). Plaintiff also enclosed
several medical records with this motion.
Court will not consider the documents which
Plaintiff has submitted in a piecemeal fashion to be part of
his operative complaint. Therefore, if Plaintiff wants the
complete set of allegations that he has included in the
various documents described above (Docs. 1, 6, 10, and 13) to
be considered as part of his claim, he must re-submit a new
amended complaint, which includes his entire factual
narrative in a single document. His exhibits/medical records
must also be re-submitted with his new amended complaint, if
he wants them to be reviewed by the Court.
is REMINDED that an allegation of
negligence, or facts that demonstrate negligence, are
not sufficient to state a claim for a violation of
the Eighth Amendment in a Bivens lawsuit. In order
to demonstrate unconstitutional deliberate indifference, the
complaint must show that a prison official acted or failed to
act despite the official's knowledge of a substantial
risk of serious harm to the plaintiff, from a condition that
created an excessive risk to his health or safety. Farmer
v. Brennan, 511 U.S. 825, 834 (1994). Alternatively, a
negligence claim may be brought under the Federal Tort Claims
Act (naming the United States as the Defendant), but only if
the plaintiff has first presented that claim through the
agency's administrative tort claim procedure, and
received a final decision on that claim. See 28
U.S.C. § 2671 et seq.; Palay v. United
States, 349 F.3d 418, 425 (7th Cir. 2003).
IS THEREFORE ORDERED that, if Plaintiff wants the
Court to consider the factual allegations which to date he
has presented in piecemeal form, Plaintiff shall submit them
to the Court in the form of a Second Amended Complaint, which
shall be filed within 28 days of the entry of this order (on
or before March 22, 2018). It is strongly
recommended that Plaintiff use the form designed for use in
this District for civil rights actions. He should label the
pleading “Second Amended Complaint” and include
Case Number 17-cv-1292-JPG.
Plaintiff does not submit a Second Amended Complaint within
the allotted time and in compliance with the Court's
instructions, the Court shall proceed to conduct the
threshold § 1915A review on the First Amended Complaint
(Doc. 10) - and that review shall not include any
consideration of the other piecemeal documents submitted by
Plaintiff (Docs. 6 and 13).
is REMINDED that an amended complaint
supersedes and replaces all previous Complaints, rendering
them void. See Flannery v. Recording Indus. Ass'n of
Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). The Court
will not accept piecemeal amendments to a Complaint. Thus,
the Second Amended Complaint must contain
all the relevant allegations in
support of Plaintiff's claims and must stand on its own,
without reference to any other pleading. Plaintiff must also
re-file any exhibits he wishes the Court to consider along
with the Second Amended Complaint.
is ADVISED to review the reasons for
dismissal of his original Complaint in the Court's Order
of December 18, 2017 (Doc. 7), and follow the instructions
contained there with reference to the amendment of his
order to assist Plaintiff in preparing a Second Amended
Complaint, the Clerk is DIRECTED to mail
Plaintiff a blank civil rights complaint form.
Clerk is further DIRECTED to send Plaintiff
a copy of the docket sheet for this case at no charge, as a
courtesy to assist him in tracking the filing of his various
documents. If Plaintiff wants to have copies of any other