“[T]he case [is] still in its infancy, thereby making it impossible at [this] juncture to make any accurate determination regarding [the plaintiff’s] abilities or the outcome of the lawsuit.”
How later courts described this case
- “[T]he case [is] still in its infancy, thereby making it impossible at [this] juncture to make any accurate determination regarding [the plaintiff’s] abilities or the outcome of the lawsuit.”
- suit is “malicious” for purposes of Section 1915A if it is intended to harass the defendant or is otherwise abusive of the judicial process
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
STEVEN GEORGE BODNAR,
Plaintiff,
v. CAUSE NO. 2:20-CV-183-PPS-JPK
LAKE COUNTY JAIL et al, et al.,
Defendants.
OPINION AND ORDER
Steven George Bodnar, a prisoner without a lawyer, filed a complaint in this case
that appeared to be duplicative of a case he had already initiated, Bodnar v. Lake County
Jail, 2:20-CV-157-PPS-APR (filed Apr. 15, 2020). Rather than dismissing this case as a
malicious duplicate, I gave Bodnar an opportunity to file an amended complaint that
was not duplicative of his claims pending in 2:20-CV-157-PPS-APR. He has now filed an
amended complaint. ECF 5. In addition, he seeks to combine this case with 2:20-CV-157-
PPS-APR, he wants the defendants to produce video footage, and he seeks to “add
Covid-19 incidents.” ECF 6; ECF 7; ECF 8.
“A document filed pro se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation
marks and citations omitted). Nevertheless, pursuant to 28 U.S.C. § 1915A, I must
review the merits of a prisoner complaint and dismiss it if the action is frivolous or
malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief.
There are numerous problems here. First off – for whatever reason, Bodnar chose
to initiate two cases, not one. I will not combine them. However, Bodnar is in no way
required to pursue his claims in both cases. He is welcome to raise all of his allegations
related to how the Lake County Jail has handled the Covid-19 pandemic in a single
case. I cannot provide Bodnar with legal advice – these are his cases, and he must
decide if he will litigate his claims in one case or two cases. However, he will not be
permitted to raise the same claims against the same defendants in both cases because it
is malicious to do so. See Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003) (suit is
“malicious” for purposes of Section 1915A if it is intended to harass the defendant or is
otherwise abusive of the judicial process). In other words, whatever he litigates here
cannot duplicate what he is litigating in 2:20-CV-157-PPS-APR.
Next, the amended complaint does not contain sufficient factual allegations to
state a claim. Bodnar’s amended complaint reads more like a request for counsel than a
complaint, and - despite its title – he is seeking additional time to file yet another
amended complaint. Setting aside the request for counsel and additional time to file yet
another amended complaint for the moment, Bodnar’s amended complaint asserts only
legal conclusions that his rights have been violated and vague allegations about his
health, safety, and wellbeing being disregarded by jail staff. I’ve told Bodnar that, in his
amended complaint, he needed to explain in his own words what happened, when it
happened, where it happened, who was involved, and how he was personally injured
by the events that transpired, providing as much detail as possible. ECF 4. He has not
done so.
Moreover, “[t]here is no right to court-appointed counsel in federal civil
litigation.” Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014) (citing Pruitt v. Mote, 503
F.3d 647, 649 (7th Cir. 2007)). In some circumstances, the court may ask counsel to
volunteer to represent indigent parties for free. “When confronted with a request under
§ 1915(e)(1) for pro bono counsel, the district court is to make the following inquiries:
(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been
effectively precluded from doing so; and if so, (2) given the difficulty of the case, does
the plaintiff appear competent to litigate it himself?“ Pruitt, 503 F.3d at 654. In support
of his motion, Bodnar notes that he lacks legal knowledge, has limited law library
access, and has already made several mistakes in attempting to litigate his claims. At
this juncture, if Bodnar has claims he wants to pursue in this case, he will need to file
another amended complaint. This requires only a short and plain statement telling what
each defendant did wrong, as explained above. His filings in this case to date suggest
that he is competent enough to explain to me what happened and why he believes his
rights have been violated. Until I have received Bodnar’s second amended complaint
and screened it, as required by 28 U.S.C. § 1915A, it would be premature to appoint
counsel. This case is in its infancy. I cannot make an accurate determination regarding
Bodnar’s ability to handle this case as it progresses and it is not yet clear how difficult
this case will be. See Romanelli v. Suliene, 615 F.3d 847, 852 (7th Cir. 2010) (“[T]he case [is]
still in its infancy, thereby making it impossible at [this] juncture to make any accurate
determination regarding [the plaintiff’s] abilities or the outcome of the lawsuit.”). For
these reasons, I will not appoint counsel at this early stage.
Additionally, it is problematic that Bodnar has produced an amended complaint
that simultaneously represents that he intends to present yet another amended
complaint in the future. Although I have screened his amended complaint and
determined that it does not state a claim, it is a waste of scarce judicial resources to
screen a complaint when that complaint makes clear that it does not reflect the claims
that he ultimately intends to present to the court.
Furthermore, until there is a complaint before me that states a claim, I cannot
even consider granting a preliminary injunction. “A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, Inc.,
555 U.S. 7, 20 (2008). These determinations cannot be made without knowing exactly
who Bodnar is suing in this case, why he believes those defendants are liable to him,
and why he believes he will suffer irreparable harm if a preliminary injunction is not
issued. Furthermore, any injunctive relief must be “narrowly drawn, extend no further
than necessary to remedy the constitutional violation, and must use the least intrusive
means to correct the violation of the federal right.” Westefer v. Neal, 682 F.3d 679, 681
(7th Cir. 2012). Even if Bodnar demonstrated a likelihood of success on the merits of an
alleged constitutional violation, an order directing that Bodnar be released from prison
would not be a narrowly tailored remedy.
Although I’ve told Bodnar that he can’t obtain relief on behalf of other inmates,
he still seeks relief for inmates other than himself. He cannot do this. ”A litigant may
bring his own claims to federal court without counsel, but not the claims of others. This
is so because the competence of a layman is clearly too limited to allow him to risk the
rights of others.” Fymbo v. State Farm Fire and Cas. Co., 213 F.3d 1320, 1321 (10th Cir.
2000) (citations and quotation marks omitted).
In the interests of justice, I will permit Bodnar to amend his complaint again, if
he desires to do so. See Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014 (7th Cir. 2013). The
next step here is that Bodnar needs to decide if he has claims to pursue that do not
duplicate the claims he is raising in 2:20-CV-157-PPS-APR and, if he does, whether he
wishes to pursue those claims in this case. If he has determined that he will pursue all of
his claims in 2:20-CV-157-PPS-APR, then he does not need to file anything further in
this case. It will be dismissed when the deadline to file a second amended complaint has
passed.
If and only if Bodnar desires to maintain two separate cases with non-duplicative
claims, then he needs to file a second amended complaint in this case. If Bodnar needs
additional time to file his second amended complaint, he can file a motion asking for an
extension. However, the second amended complaint itself should not ask for additional
time to file an amended complaint. It also should not seek relief on behalf of other
inmates. Completing the second amended complaint should not require legal research
or other law library research. He will be provided with a form to use and he only needs
to explain in his own words what happened, when it happened, where it happened,
who was involved, and how he was personally injured by the events that transpired,
providing as much detail as possible.
As for Bodnar’s request that a video be produced (ECF 6), his request is
premature. Discovery is not available to Bodnar until he has filed a second amended
complaint (if he chooses to do so), I have screened that complaint, I have determined
that it states a claim, the United States Marshals Service has served the defendants, and
counsel for the defendants have appeared. Thus, the request for production of the video
will be denied.
Finally, Bodnar seeks to “add” additional incidents to this case. ECF 8. N.D. Ind.
L.R. 15-1 requires that a complaint be amended by “reproduc[ing] the entire pleading as
amended” and prohibits “incorporat[ing] any prior pleading by reference.” He cannot
simply add things to an existing complaint. The local rules do not permit it.
For these reasons, the court:
(1) DENIES Steven George Bodnar’s request for counsel contained in his
amended complaint (ECF 5);
(2) DENIES Steven George Bodnar’s Motion to Produce Copy of Video (ECF 6):
(3) DENIES Steven George Bodnar’s Motion to Combine Cases (ECF 7);
(4) DENIES Steven George Bodnar’s Motion to Add Covid-19 Incidents (ECF 8);
(5) ORDERES Steven George Bodnar to file separate motions in each case where
he is seeking relief and avoid filing requests pertaining to multiple cases in a single
document;
(6) DIRECTS the clerk to put this case number on a blank Prisoner Complaint
form, Pro Se 14 (INND Rev. 2/20), and send it to Steven George Bodnar;
(7) GRANTS Steven George Bodnar until July 6, 2020, to file a second amended
complaint; and
(8) CAUTIONS Steven George Bodnar, that, if he does not respond by that
deadline, his case will be dismissed pursuant to 28 U.S.C. § 1915A because the current
complaint does not state a claim for which relief can be granted.
SO ORDERED.
ENTERED: May 21, 2020.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT