United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL, CHIEF U.S. DISTRICT JUDGE
Donnie Baker filed this pro se action pursuant to 42
U.S.C. § 1983. In the Complaint, Plaintiff alleges that
he was not taken to a hospital after he suffered a personal
injury. He seeks monetary relief.
also seeks leave to proceed in forma pauperis
(“IFP”), i.e., without prepayment of the
filing fee for this action. (Doc. 2). Although Baker sues a
number of officials with the Illinois Department of
Corrections (“IDOC”), he was not in prison at the
time he filed his Complaint. Thus, he is not a prisoner under
28 U.S.C. § 1915(h). Nevertheless, the district court
may deny the otherwise qualified plaintiff leave to proceed
IFP and dismiss the case, if the action does not survive
screening under 28 U.S.C. § 1915(e)(2), which requires
dismissal of a complaint, or any claim therein, that is
clearly frivolous or malicious, fails to state a claim for
relief, or seeks money damages from an immune defendant. An
action fails to state a claim if it does not plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The test for
determining if an action is frivolous or meritless under
Section 1915(e)(2)(B)(i) is whether the plaintiff can make a
rational argument on the law or facts in support of the
claim. Neitzke v. Williams, 490 U.S. 319, 325
(1989). An action is frivolous if it “lack[s] an
arguable basis either in law or in fact.”
Neitzke, 490 U.S. at 325. A claim is legally
frivolous if it is “based on an indisputably meritless
legal theory.” Id. at 327-328. A claim is
factually frivolous if it is “clearly baseless,
fanciful, fantastic, delusional, irrational, or wholly
incredible.” Felton v. City of Chicago, 827
F.3d 632, 635 (7th Cir. 2016) (quotation omitted) (quoting
Denton v. Hernandez, 504 U.S. 25, 32-33 (1992));
see also Gladney v. Pendleton Correctional Facility,
302 F.3d 773, 774 (7th Cir. 2002) (a case can be dismissed as
factually frivolous when the allegations “are so nutty
(“delusional” is the polite word) that
Complaint, Plaintiff makes the following allegations: He
suffered a personal injury and should have been sent to the
hospital right away. (Doc. 1, p. 6). He lists grievance
officials Bob Allard (grievance officer), Counselor Clark,
and Mr. Hileman (ARB official) as defendants.
the Court is required to construe Plaintiff's Complaint
liberally, he fails to provide the Court with enough
information “to state a claim to relief that is
plausible on its face, ” and the Court is not obligated
to craft a claim on Plaintiff's behalf. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Plaintiff's Complaint lists several grievance officials
but fails to allege how they violated his constitutional
rights. He indicates in a single sentence that he was injured
and should have been sent to the hospital, but he provides no
additional allegations regarding the injury he suffered. He
attaches a grievance from March, 29, 2018, which indicates
that his private parts were stuck in the zipper of his pants
and that he was taken to the healthcare unit where he was
treated by a nurse (Doc. 1, pp. 9-10). But his Complaint
fails to allege any treatment, if any, he received from
Defendants. A successful Complaint generally alleges
“the who, what, when, where, and how…”
See DiLeo v. Ernst & Young, 901 F.2d 624, 627
(7th Cir. 1990). Thus, if Plaintiff wants to pursue his
claims, he must file an amended complaint. The amended
complaint should identify who violated
Plaintiff's constitutional rights by name, include a
description of how Plaintiff's rights were
violated, and when that violation took place.
Plaintiff's Complaint is DISMISSED without
prejudice for failure to state a claim.
is GRANTED leave to file a “First
Amended Complaint” on or before August 16,
2019. Should Plaintiff fail to file his First
Amended Complaint within the allotted time or consistent with
the instructions set forth in this Order, the entire case
shall be dismissed with prejudice for failure to comply with
a court order and/or for failure to prosecute his claims.
Fed. R. App. 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. §
amended complaint supersedes and replaces the original
complaint, rendering the original complaint 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 original Complaint. Thus, the
First Amended Complaint must stand on its own, without
reference to any previous pleading, and Plaintiff must
re-file any exhibits he wishes the Court to consider along
with the First Amended Complaint. The First Amended Complaint
is subject to review pursuant to 28 U.S.C. § 1915A.
is further ADVISED that his obligation to
pay the filing fee for this action was incurred at the time
the action was filed, thus the filing fee remains due and
payable, regardless of whether Plaintiff elects to file a
First Amended Complaint. See 28 U.S.C. §
1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467
(7th Cir. 1998).
Plaintiff is ADVISED that he is under a
continuing obligation to keep the Clerk of Court and each
opposing party informed of any change in his address; the
Court will not independently investigate his whereabouts.
This shall be done in writing and not later than 7
days after a transfer or other change in address
occurs. Failure to comply with this Order will cause a delay
in the transmission of court documents and may result in
dismissal of this action for want of prosecution.
See Fed. R. Civ. P. 41(b).
Clerk is DIRECTED to mail Plaintiff a blank
civil rights complaint form for use in ...