Turner v. Cimorelli
- Philip Halpern
- 7:20-cv-00643
- U.S. District Court · Southern District of New York
- 2
In Turner v. Cimorelli, Judge Halpern directed clarification about replacing or adding claims and denied fee-free appeal status without deciding the claims.
Allahjustice Turner, whose amended complaint and potentially retained claims must be clarified before the case proceeds; the defendants whose claims may remain in the case are also affected.
What happened
In Turner v. Cimorelli, Allahjustice Turner, who is incarcerated and representing himself, brought a civil-rights case claiming excessive force. His amended complaint added claims involving medical care by Nurse Rawls, Nurse Washington, and a medical director, but it was unclear whether he also meant to keep claims against Murphy and Moore.
The court directed Turner to file a letter by August 6, 2020, stating whether the amended complaint was meant to add to the original complaint or replace it. If he did not respond, or said he did not intend to add to the original complaint, the court would treat the amended complaint as the operative complaint and screen it—meaning review it for legal sufficiency—before issuing summonses.
Judge Philip M. Halpern also certified that an appeal would not be taken in good faith and denied Turner permission to proceed without paying fees for an appeal. The order did not decide whether Turner's claims were legally valid.
The detailed version
- Turner v. Cimorelli · No. 7:20-cv-00643
- Philip Halpern
- July 6, 2020
Background
Allahjustice Turner filed this action under 42 U.S.C. § 1983 while incarcerated and representing himself. He alleged that certain defendants used excessive force. An earlier order allowed him to file an amended complaint to replead claims involving John and Jane Doe medical staff and warned that an amended complaint would completely replace the original complaint.
Turner then filed an amended complaint asserting claims against Nurse Rawls concerning two Benadryl tablets for allergies and the possible failure to notify kitchen staff before he received a second meal involving mushrooms. He also asserted a claim against Nurse Washington based on her response to small bumps on one side of his mouth. The amended complaint asserted claims against a medical director based on a theory that the director was responsible for others' conduct. The court stated that it was unclear whether Turner intended to abandon claims against Murphy and Moore.
Order
The court directed Turner to file a letter through the court's electronic filing system by August 6, 2020, explaining whether he intended the amended complaint to supplement the original complaint. A supplemental pleading adds later events or claims to an earlier pleading, while an amended complaint replaces the earlier pleading.
The court stated that if Turner failed to respond, or said that he did not intend to supplement the original complaint, it would treat the amended complaint as the operative complaint. The court would then screen that complaint under 28 U.S.C. § 1915(e)(2)(B)(ii), which requires review of certain complaints filed by people proceeding without paying filing fees to determine whether they should be dismissed for legal insufficiency. No summons would issue at that time.
Appeal and Disposition
Judge Philip M. Halpern certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith and denied permission to appeal without paying the required fees. The order did not rule on the merits of the excessive-force or medical-care claims.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.