United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. Yandle, United States District Judge
matter is before the Court for consideration of
Plaintiff's Motion for Court to Allow Counsel to Withdraw
from Representation, or in the Alternative, Inform Counsel
that the Following 7th Circuit Law is Relevant (Doc. 32), and
Motion for Extension of Time (Doc. 34). The motion to allow
counsel to withdraw shall be granted, and Plaintiff will be
allowed additional time to pay the filing fee for this action
and to submit an amended complaint.
Court concluded that Plaintiff did not demonstrate that he
was under imminent danger of serious physical injury as of
the time this action was filed in January 2017, and therefore
denied Plaintiff's motion for leave to proceed in
forma pauperis (“IFP”). (Doc. 33);
see 28 U.S.C. § 1915(g). As a result, Plaintiff
must pre-pay the $400.00 filing fee in full, or the action
will be dismissed. He was given a deadline of May 21, 2018,
to submit this payment, and now requests an extension of time
to July 4, 2018 so that he may attempt to obtain those funds.
motions indicate that he desires to proceed with this action
pro se, providing that he is able to pay the $400.00
filing fee, and if his research indicates that he can state a
meritorious claim. Plaintiff's First Amended Complaint
(Doc. 9) was dismissed without prejudice (Doc. 10), so he
cannot proceed in this matter (even if he pays the fee)
unless he files a Second Amended Complaint that survives a
merits review under 28 U.S.C. § 1915A.
recruited counsel has fulfilled his obligation to investigate
Plaintiff's claims of medical deliberate indifference,
and concluded that he was unable to prepare a Second Amended
Complaint that would overcome the 3-strike bar in §
1915(g). Under these circumstances, the Court finds it
appropriate to relieve counsel of his appointment, and
GRANTS that portion of Plaintiff's
motion (Doc. 32) which seeks to allow counsel to withdraw.
The alternative relief Plaintiff seeks in the motion (to
inform counsel of certain 7th Circuit case law) is
DENIED AS MOOT.
IS THEREFORE ORDERED that Joseph H. Guffey is
relieved of his assignment as counsel for Plaintiff, with the
IS FURTHER ORDERED that the motion for extension of
time (Doc. 34) is GRANTED as follows.
Because July 4, 2018, is a Court holiday, the new deadline
for Plaintiff to pay the $400.00 filing fee in full shall be
July 5, 2018. No further extension
shall be granted. If full payment is not received on
or before that date, this action shall be dismissed. If the
action is dismissed, the Court shall then order payments to
be deducted from Plaintiff's prisoner trust account in
accordance with § 1915(b) until the $400.00 fee is paid
in full. See Fed. R. Civ. P. 41(b); Ladien v.
Astrachan, 128 F.3d 1051, 1056-57 (7th Cir. 1997);
Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir.
IS FURTHER ORDERED that, if Plaintiff succeeds in
paying the $400.00 filing fee by the above deadline,
Plaintiff shall also submit his Second Amended Complaint on
or before July 5, 2018. In other words, if
Plaintiff is unable to pay the $400.00 filing fee in full,
there is no need for him to submit an amended complaint.
amended complaint, Plaintiff shall specify, by name,
each Defendant alleged to be liable under each particular
claim, as well as the actions alleged to have been taken by
that Defendant. Plaintiff should state facts to describe what
each named Defendant did (or failed to do), that violated his
constitutional rights. New individual Defendants may be added
if they were personally involved in the constitutional
violations. Plaintiff should attempt to include the facts of
his case in chronological order, inserting Defendants'
names in order to identify the actors and the dates of any
material acts or omissions.
amended complaint supersedes and replaces all prior
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 the previous Complaints. 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.
Plaintiff fails to file an amended complaint within the
allotted time or consistent with the instructions set forth
in this Order, the action shall be subject to dismissal with
prejudice. Fed.R.Civ.P. 41(b). See generally Ladien v.
Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v.
Kamminga, 34 F.3d 466 (7th Cir. 1994); 28 U.S.C. §
service shall be ordered on any Defendant until after the
Court completes its § 1915A review of the Second Amended
Complaint. If the Second Amended Complaint fails to survive
review under § 1915A, Plaintiff may also incur another
“strike.” In order to assist Plaintiff in
preparing his amended complaint, the Clerk is
DIRECTED to mail Plaintiff a blank civil
rights complaint form.