# McKinnon v. Big Muddy River Correctional Center

> District Court, S.D. Illinois · December 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10152999

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** December 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANDREW MCKINNON, )
)
Plaintiff, )
)
vs. ) Case No. 20-cv-699-NJR
)
BIG MUDDY RIVER CORRECTIONAL )
CENTER, BIG MUDDY RIVER )
ADMINISTRATION/PAROLE BOARD, )
BIG MUDDY RIVER COUNSELORS, )
and BIG MUDDY RIVER ORANGE )
CRUSH TACT UNIT MEMBERS/ )
MEDICAL, )
)
Defendants. )
MEMORANDUM AND ORDER
ROSENSTENGEL,ChiefJudge:
PlaintiffAndrew McKinnon, an inmateofthe Illinois Department of Corrections (“IDOC”)
who is currently incarceratedatBig Muddy RiverCorrectional Center(“Big Muddy”),brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. §1983. In his Complaint
(Doc. 1),McKinnonalleges various constitutional violations.He seeks monetary damages.
The case is now before the Court for preliminary review of the Complaint pursuant to
28U.S.C. §1915A. Under Section 1915A, the Court is required to screen prisoner complaints to
filter out non-meritorious claims. See 28 U.S.C. §1915A(a). Any portion of a complaint that is
legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for
money damages from a defendant who by law is immune from such relief must be dismissed.
28U.S.C. §1915A(b).
The Complaint
McKinnon makes the following allegations in the Complaint (Doc. 1): He was supposed
to be released on parole on January 20, 2018,but because he could not provide a host site, he was
not released (Id. at p. 7). McKinnon believes the law requiring him to provide a host site is
unconstitutional and the prison review board improperly kept him from leaving prison. He wrote

a grievance to Counselor Hart, who labeled the grievance a repeat grievance. McKinnon believes
Hart is biased towards him and improperly denied the grievance. He is unable to get copies of his
grievances,and it is difficult to obtain grievance forms from the counselors (Id. at p. 8). He wrote
a Freedom of Information Act request for the grievances,but the request was denied.
On February 22, 2019, the Orange Crush team came to McKinnon’s cellhouse. Several
officers entered his cell and told him to cuff up. He informed them to wait so that he could produce
medical paperwork preventing him from being cuffed behind his back, but they continued to yell
at him until he allowed them to cuff him behind his back (Doc. 1, p. 9). McKinnon was marched
to the chow hall where he remained cuffed for over two hours. His neck and shoulder hurt because

of his medical condition and improper cuffing (Id.). He begged officers to take the cuffs off of
him, but they ignored him or laughed at him. He was about to pass out when an officer took him
to the medical unit. He saw Dr. Cory Girz,but he brushed off McKinnon’s complaints and would
not order x-rays.McKinnonreceiveda permit after the incident.
On April 21, 2019, McKinnon wrote a grievance about his medical care after a fall. He
slipped on a wet floor when there was no wet floor sign. He saw Dr. Larson and received an x-ray
but the x-ray machine was old,and McKinnoncould not properly see the x-ray after several takes.
He asked to be sent to an outside doctor, but Dr. Larson refused (Doc. 1, p. 10).
McKinnon also has problems with his shoulder and back that cause him pain (Doc. 1,
p.11). He has trouble sleeping andwalking because of the pain. He asked Dr. Larson to be sent to
an outside physician. He also asked for heating and cooling pads,which he previously used but is
now not allowed to have them (Id.).
In the summer of 2018, McKinnon had issues with his stomach, and Dr. Larson ordered a

stool sample test,but he never received the test (Doc. 1, pp. 11-12). He only recently received the
test after asking Dr. Larson for several months. The tested showed blood in his sample (Id. at
p.12). He finally was sent to an outside doctor in March 2019, and tests were scheduled to view
his colon. Those testshavenow been delayed because of Covid-19,but McKinnontakes issue with
Dr. Larson’s delay of over a year for the initial stool sample.
Discussion
There are several issues with McKinnon’s Complaint. He identifies a number of potential
Defendants, including Dr. Larson, Dr. Girz, members of the Orange Crush Tactical Unit, medical
staff, counselors including Counselor Hart, administration, and the parole review board. None of

these groups and individuals are listed in the caption of his Complaint. Because McKinnon fails
to list these individuals and groups in the caption, they are considered DISMISSED without
prejudice. See Fed. R. Civ. P. 10(a) (title of the complaint “must name all the parties”); Myles v.
United States, 416 F.3d 551, 551-52 (7th Cir. 2005) (defendant must be “specif[ied] in the caption”
to be considered a party). Further, to the extent that McKinnon seeks to sue groups of people
including medical staff, counselors, administration, parole review board, and the tactical unit, his
identification of group defendants rather than individual defendants is improper.1 To state a

1 Group defendants create problems with service of process. See Jenkins v. Wisconsin Res. Ctr., No. 09-
CV-323-BBC, 2009 WL 1797849, at *1 (W.D. Wis. June 24, 2009) (a group of people cannot be sued;
Section 1983 claim against an individual or entity, McKinnon must specifically identify them, by
name or Doe designation. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Fed. R.
Civ. P. 8(a)(2).
The only entity McKinnon identifies in the caption of his Complaint is Big Muddy River
Correctional Center (Doc. 1, p. 1). But the correctional center is not a proper party. The Supreme

Court has held that “neither a State nor its officials acting in their official capacities are ‘persons’
under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). See also Wynn v.
Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment bars suits against states in
federal court for money damages); Billman v. Ind. Dep’t of Corr.,56 F.3d 785, 788 (7th Cir.1995)
(state Department of Corrections is immune from suit by virtue of Eleventh Amendment); Hughes
v. Joliet Corr. Ctr.,931 F.2d 425, 427 (7th Cir.1991) (same); Santiago v. Lane,894 F.2d 219, 220
n. 3 (7th Cir. 1990) (same). Big Muddy cannot be sued because it is a division of the Illinois
Department of Corrections, a state government agency. Based on this authority, Big Muddy isnot
a“person” within the meaning of the Civil Rights Act and shall be dismissed from this action. See

Will, 491 U.S. at 71. Accordingly, Big Muddy Correctional Center is DISMISSED with
prejudice.
Finally, the Court notes that McKinnonincludes a number of unrelated claims.He offers a
laundry list of complaints about his incarceration at Big Muddy, including interactions with the
parole board, treatment of his grievances, interactions with the tactical unit, and various unrelated
medical issues. McKinnon’s Complaint violates the rules of joinder by throwing all of his
grievances together in a single Complaint. Fed. R. Civ. P. 18-21; Wheeler v. Wexford Health

each defendant must be an individual or legal entity that may accept service of a complaint) (citing Fed.R.
Civ.P. 4(e)-(j)).
Sources, Inc., 689 F.3d 680 (7th Cir. 2012) (“A litigant cannot throw all of his grievances, against
dozens of different parties, into one stewpot.”). If he decides to pursue all of these unrelated claims
in an Amended Complaint, this will result in severance of his unrelated claims into separate
lawsuits, for which he will owe a filing fee and may also incur a “strike” within the meaning of
28U.S.C. §1915(g).Further, anumber of his claims are vague and do not indicate how he believes

his constitutional rights were violated. He alleges that he was improperly denied parole and that
the “law” was unconstitutional, but he does not indicate what law he is referring to or how his
rights were violated.
Because of these numerous deficiencies, should McKinnon want to pursue any of his
various potential claims, he will need to file an Amended Complaint. 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). If McKinnon elects to file an Amended Complaint, he should
identify each defendant in the case caption and include sufficient allegations against each
defendant to describe what the defendant did or failed to do to violate his constitutional rights.To

the extent possible, he should also include the relevant facts in chronological order, inserting each
defendant’s name where necessary to identify the actors and each defendant’s actions. If
McKinnon does not know the name of a specific defendant, he should refer to that person by a
John Doe designation (i.e., John Doe #1 tactical officer, John Doe #2 grievance officer, etc.). His
Complaint should also be limited to related claims.
Pending Motions
As to McKinnon’s motions for counsel (Docs. 3 and 16), he states that he has written
several attorneys who declined to take his case. Given the early stage of the litigation, however, it
is difficult to accurately evaluate the need for the assistance of counsel. See Kadamovas v. Stevens,
706 F.3d 843, 845 (7th Cir. 2013) (“[U]ntil the defendants respond to the complaint, the plaintiff’s
need for assistance of counsel ... cannot be gauged.”).2Further, the Court finds McKinnoncapable
of filing an Amended Complaint on his own.Thus, McKinnon’s motionsfor counsel (Docs. 3 and
16) are DENIED without prejudice. McKinnon may renew his request for the recruitment of
counsel at a later date.

Disposition
For the reasons stated above, McKinnon’s Complaint is DISMISSED without prejudice.
The motion for service of process (Doc. 4) is DENIED as moot.McKinnonis GRANTEDleave
to file a “First Amended Complaint” on or before January 8, 2021.Should McKinnonfail 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. §1915(e)(2).

An 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 McKinnon 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 28U.S.C. §
1915A.

2 In evaluating the motion for counsel, the Court applies the factors discussed in Pruitt v. Mote, 503 F.3d
647, 654 (7th Cir. 2007), and related authority.
McKinnon 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 McKinnon 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).
Finally, McKinnon 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).

IT IS SO ORDERED.
DATED: 12/8/2020 Tl
nofhlimmti’
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10152999. Public record. Not legal advice.