United States District Court, W.D. Tennessee, Western Division
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS (ECF No. 17) ORDER DENYING EXTENSION OF TIME TO FILE BRIEF (ECF No. 18) ORDER DENYING MOTION FOR ADDITIONAL TIME TO RESPOND TO COMPLAINT (ECF No. 19) ORDER DISMISSING AMENDED COMPLAINT AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH
JAMES D. TODD, District Judge.
On May 23, 2012, Plaintiff Frederick L. Caery, who was at that time an inmate at the Shelby County Department of Correction ("SCDC") in Memphis, Tennessee, filed a pro se complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On July 17, 2013, the Court entered an order dismissing Plaintiff's complaint as failing to state a claim, pursuant to 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B), and as failing to allege a physical injury, pursuant to 42 U.S.C. § 1997e(e). (ECF No. 5.) Judgment was entered on July 19, 2013. (ECF No. 6.)
On August 19, 2014, the United States Court of Appeals for the Sixth Circuit affirmed the dismissal of Plaintiff's claims against Shelby County, Sheriff Mark Luttrell, Minus Adams, Karen Mitchell, Robert Hurd, James Coleman, Officer Jerry Harris, Counselor Holiday, and Mr. Spears. (ECF No. 17-1 at 2.) The Sixth Circuit determined, however, that Plaintiff's Eighth Amendment claims against Defendants Sergeant Strickland, S. Wilson, Captain Chambers, Sergeant Young, Sergeant Franklin, Lieutenant Swanson, and Wing Officer Turner were sufficient to demonstrate that6> those defendants were aware of the serious risk of harm posed by the alleged conditions in J Building. (Id. at 3-4.) The Sixth Circuit recognized, however, that Plaintiff's complaint contained no allegations of any physical injury and was subject to dismissal under 42 U.S.C. § 1997e(e). (Id. at 4.) Because the district court had the discretion to permit Caery to amend his complaint, the Sixth Circuit determined that this deficiency "may have been cured by allowing Caery to amend the complaint to include allegations detailing any physical injuries he suffered." (Id. ) The Sixth Circuit vacated the district court's judgment with respect to Caery's Eighth Amendment claims for monetary relief against Strickland, Wilson, Young, Franklin, Swanson, and Turner and remanded the case for further proceedings on those claims. (Id. )
By order entered October 1, 2014, the Court vacated the order dismissing Plaintiff's complaint with regard to Plaintiff's Eighth Amendment conditions of confinement claims against Defendants Sergeant Strickland, S. Wilson, Captain Chambers, Sergeant Young, Sergeant Franklin, Lieutenant Swanson, and Wing Officer Turner. (ECF No. 15.) The Court ordered Plaintiff to amend his complaint within thirty (30) days in accordance with the Sixth Circuit's order to allege any physical injuries suffered from those prison conditions during his confinement at the SCCC. (Id. at PageID 67.) The order stated:
If Plaintiff fails to file a timely amended complaint within the time specified, the Court will assess a strike pursuant to 28 U.S.C. § 1915(g) and will enter judgment.
On October 29, 2014, Plaintiff filed an amended complaint. (ECF No. 16.) Plaintiff notified the Court that he was no longer incarcerated and filed a nonprisoner affidavit for leave to proceed in forma pauperis. (ECF No. 17.) The motion to proceed in forma pauperis is GRANTED. On October 29, 2014, Plaintiff filed a motion for extension of time to file a brief. (ECF No. 18.) Plaintiff was not directed to file a brief and no brief is necessary. The motion for an extension of5> time to file a brief is DENIED. Plaintiff also filed a motion for additional time to respond to Shelby County's complaint. (ECF No. 19.) Shelby County is no longer a party to this case and did not file a complaint. The motion is DENIED.
Plaintiff's amended complaint states:
A. Frederick Caery and Shelby County, et al., (the "Parties") entered into the contract (the "Contract") dated May 23rd, 2012, for the purpose of order vacating order of dismissal with regard to eighth amendment claims and order granting leave to amend eighth amendment claims.
B. The Parties desire to amend the Contract on the terms and conditions set forth in this Amending Agreement (the "Agreement").
C. This Agreement is the first amendment to the Contract.
IN CONSIDERATION OF the Parties agreeing to amend their obligations in the existing Contract, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, both Parties agree to keep, perform ...