Custer v. Watkins

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

JOHN CUSTER, )

Plaintiff, )

)

vs. ) Case No. 22-1464

)

CHRIS WATKINS, et. al., )

Defendant )

MERIT REVIEW ORDER

JAMES E. SHADID, U.S. District Judge:

This cause is before the Court for consideration of Plaintiff’s Motions for Leave to

File an Amended Complaint. [7, 14].

Plaintiff’s original complaint was dismissed as a violation of Federal Rule of Civil

Procedure 8. See January 13, 2023 Merit Review Order. Plaintiff provided a litany of

claims against 12 Defendants at the Peoria County Jail without providing time frames or

stating how each Defendant was involved in his allegations. In addition, while Plaintiff

stated his claims began in December of 2020, it did not appear as though Plaintiff was

continuously incarcerated in the jail.

The Court noted it was particularly important for Plaintiff to clearly state his

claims because he had “filed 24 lawsuits concerning the Peoria County Jail since August

of 2021 including 13 lawsuits since December 19, 2022.” January 13, 2023 Merit Review

Order, p. 3,(listing cases). Based on the vague allegations, it was unclear if Plaintiff was

repeating claims already before the Court.

Plaintiff was given additional time to file an amended complaint.

… Plaintiff is advised his amended complaint MUST clearly state what

happened, when it happened, which Defendants were involved, how

each Defendant was involved, and any harm Plaintiff suffered. Plaintiff

must provide the date each allegation occurred or a specific time frame.

Plaintiff should also state whether he was ever released from the Peoria

County Jail or transferred to another facility, and if so, when this occurred.

January 13, 2023 Merit Review Order, p. 4.

Plaintiff was also admonished if he failed to follow the Court’s directions, his

case could be dismissed. See January 13, 2023 Merit Review Order, p. 4.

Plaintiff immediately filed a motion for leave to file an amended complaint, [7],

but then asked the Court for additional time to file a revised amended complaint. See

January 31, 2023 Text Order, [12]. The motion was granted, and Plaintiff has now filed

his second motion for leave to file an amended complaint. See March 27, 2023 Text

Order, [14].

Plaintiff’s second proposed amended complaint supersedes the first. Therefore,

Plaintiff’s initial motion for leave to file an amended complaint is denied as moot, [7],

and his second motion is granted pursuant to Federal Rule of Civil Procedure 15. [14].

The Court is still required by 28 U.S.C. §1915A to “screen” the Plaintiff’s second

amended complaint, and through such process to identify and dismiss any legally

insufficient claim, or the entire action if warranted. A claim is legally insufficient if it

“(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C.

§1915A.

Plaintiff has changed some of the Defendants in his new complaint. For instance,

Plaintiff has again identified Sheriff Chris Watkins, Jail Superintendent Cameesha

Turner, Assistant Supervisor Brad Johnson, Bernice Young, Ronda Guyton, Hoffman,

Hart-Peirson, Russell Owens, Sally Folley, and Nurse Trisha as Defendants, but he has

added Defendants Melissa, Carter, Smith, Munoz, and Neilson. In addition, Plaintiff no

longer identifies Brian Asbell, Russell Owens, and Diana Powers as Defendants.

Plaintiff has ignored the Court’s directions and again provides a wide variety of

allegations without time frames or a clear explanation of how any Defendant was

involved. Plaintiff’s second amended complaint contains the following claims:

1) On January 15, 2021, Plaintiff was ill and a nurse said his blood pressure was

very high and he should go to the hospital. Defendant Peirson intervened

and said Plaintiff was fine. The next day, Defendant Carter refused medical

treatment even though Plaintiff was feeling worse. Plaintiff was found

unresponsive and rushed to the hospital due to cardiac arrhythmia.

2) Plaintiff “later” tested positive for COVID. (Amd. Comp., p. 5). It is unclear

when this occurred. Plaintiff says he complained to Defendant Trisha that he

had COVID symptoms and several other health problems, but it’s not clear that

she took any action.

3) On May 5, 2021, Plaintiff was severely assaulted at the jail. Plaintiff appears to

say he already has a pending lawsuit concerning the incident. However,

Plaintiff is now alleging the mental health care he received after the

assault was inadequate. Plaintiff does not identify the responsible Defendant.

4) During an unspecified time, Defendants Carter, Hoffman, Smith, and Owens

denied Plaintiff an attorney call, an hour of out his cell each day, once a week

showers, access to medical care, personal calls, and fed him peanut butter and

jelly three times a day for three months. Defendant Mental Health Worker

Melissa came to his cell every day and refused to talk about his housing

conditions. Plaintiff has not provided a time frame.

5) On June 5, 2021, Defendant Turner denied Plaintiff pencils to write to his

family. Plaintiff was also denied his Illinois Department of Corrections issued

eyeglasses because they had metal. It is unclear when Plaintiff was denied his

glasses.

6) Plaintiff was denied books, mail, phone calls, letters, and law library time.

Plaintiff does not state when this occurred or who was responsible.

7) Plaintiff was denied medication for his mental health conditions. Plaintiff

does not say when this occurred, or who denied the medication. (Amd. Comp., p.

6). However, later in his Amended Complaint, Plaintiff says Defendants Cox,

Carter, Hoffman, Pierson, and Johnson denied mental health treatment. (Amd.

Comp, p. 9). Plaintiff does not clarify if this is the same allegation, what

treatment was denied, when it occurred, or how these individuals were involved.

8) Plaintiff was moved to a segregation cell for 90 days. During this time,

Defendants Smith, Hoffman, Hart-Peirson, Carter “all would refuse phone, atty

call, I was (in) 24 hour a day hell.” (Amd. Comp., p. 7). Plaintiff does not provide

dates or a time frame for his claim.

9) Plaintiff was given three disciplinary tickets “for nothing.” (Amd. Comp., p.

7). While not entirely clear, it appears Plaintiff believes Defendants Owens,

Smith, Pierson, Carter, and Hoffman were responsible. Plaintiff does not say

when this occurred or how the Defendants were involved.

10) Plaintiff was not allowed food when Defendant Cox denied him a food tray

on an unspecified date.

11) Defendant Hoffman tazed Plaintiff in the shower and gave him a “bogus

ticket” on an unspecified day in “retaliation” for Plaintiff smearing feces on a

window. (Amd. Comp., p. 8).

12) Plaintiff says he left the Peoria County Jail on an unspecified day and

returned on November 3, 2022. Plaintiff says Defendant Hart-Peirson severely

injured Plaintiff and he filed a lawsuit. However, from November 4-6, 2022,

Plaintiff showed Defendant Young his “severely injured body” and she refused

to provide medical or mental health care. (Amd. Comp, p. 8). Plaintiff also says

Defendants Peirson, Hoffman, Smith, and Neilson along with a Sergeant all

denied him medical treatment and tried “to hide the vicious assault I (endured)

on November 3, 2022.” (Amd. Comp., p. 8)

13) Plaintiff was “later” moved to a cell block with black mold and no working

water. (Amd. Comp, p. 14). Defendant Johnson also would not allow Plaintiff to

call his attorney. Plaintiff does not say how long he was in this area, but claims

he had a nervous breakdown due to the conditions on March 30, 2023. Plaintiff

says Defendants, Turner, Watkins, and Young knew he was struggling because

he begged every day for help and said he planned to commit suicide.

14) Since March 30, 2023, Defendant Young refuses to speak to Plaintiff and

refuses attorney phone calls.

15) Defendant Johnson refuses medications and pencils.

Without commenting on the strength or weakness of any of Plaintiff’s claims, he

has ignored the Court’s directions and clearly cannot proceed with each of these

allegations in one complaint. See George v Smith, 507 F.3d 605, 607 (7th Cir. 2007)

(“multiple claims against a single party are fine, but Claim A against Defendant 1

should not be joined with unrelated Claim B against Defendant 2).

In addition, some of Plaintiff’s allegations occurred after he filed his initial

complaint on December 28, 2022. [1]. Plaintiff is reminded he must be able to

demonstrate he exhausted his administrative remedies for each claim before he initiated

this lawsuit. See 42 U.S.C. § 1997e(a).

Because Plaintiff is proceeding pro se, the Court will allow him one FINAL

opportunity to file an amended complaint. Plaintiff must choose which claims he

intends to bring in this lawsuit. Plaintiff should not refer to any previously filed

complaint, must not repeat claims he has filed in other cases, and must not provide a

history of all problems at the Peoria County Jail. Instead, Plaintiff must limit his third

amended complaint only to the specific claims he wants to bring in this lawsuit.

Plaintiff’s third amended complaint must include numbered paragraphs. For

each claim, Plaintiff MUST provide a time frame for his allegation. In addition,

Plaintiff musts not simply provide a list of Defendants, but instead must briefly explain

how each Defendant was involved his claim.

The Court notes it has “a special responsibility to construe pro se complaints

liberally and to allow ample opportunity for amending the complaint when it appears

that by so doing the pro se litigant would be able to state a meritorious claim.” Donald v

Cook County Sheriff’s Dept., 95 F.3d 548, 555 (7th Cir. 1996). However, the Plaintiff is

cautioned “these general principles have some limits.” Stanard v. Nygren, 658 F.3d 792,

801 (7th Cir. 2011) Leave to replead will not be allowed after “repeated failure to cure

deficiencies by amendments previously allowed.” Foman v Davis, 371 U.S. 178, 182

(1962); see also Stanard, 658 F.3d at 801 (7th Cir. 2011)(dismissed after plaintiff “had

three opportunities to file a complaint that complied with the rules, yet he failed to

follow basic instructions from the court.”); Lyon v. Brown, 1998 WL 246685 at *2 (7th Cir.

May 12, 1998)(dismissed after court allowed plaintiff third opportunity to cure specific

deficiencies and warned final opportunity to correct deficiencies). If Plaintiff again fails

to follow the Court’s directions, this case will be dismissed with prejudice. See Wilson v.

Bruce, 2010 WL 4467866 at *2 (7th Cir. Nov. 9, 2010)(“whatever benefits (the plaintiff)

may seek as a pro se litigant, they do not include license to disregard the court's

orders.”).

IT IS THEREFORE ORDERED:

1) Plaintiff’s first Motion for Leave to File an Amended Complaint is DENIED as

MOOT [7]. Plaintiff’s Second Motion for Leave to File an Amended Complaint is

GRANTED pursuant to Federal Rule of Civil Procedure 15 [14].

2) Plaintiff’s second amended complaint is dismissed as a violation of Federal

Rule of Civil Procedure 8, 18, and 20. See George v Smith, 507 F.3d 605, 607 (7th

Cir. 2007).

3) The Court will allow Plaintiff one FINAL opportunity to file an amended

complaint clarifying his claims. Plaintiff must file his proposed third amended

complaint on or before May 10, 2023, and MUST follow the Court’s directions

concerning the information provided in his complaint.

3) If Plaintiff fails to file his third amended complaint on or before the deadline

or fails to follow the Court’s directions, his case will be dismissed with prejudice.

4) The Clerk is to provide Plaintiff with a blank complaint form for his assistance.

The Clerk is also to reset the internal merit review deadline within 30 days of this

order.

Entered this 18th day of April, 2023.

s/ James E. Shadid

_________________________________________

JAMES E. SHADID

UNITED STATES DISTRICT JUDGE