Gibson, 355 U.S. 41, 45-46 (1957); see also Hartford Fire Ins. Co. v. California, 509

U.S. 764 (1993); Sherwin Manor Nursing Ctr. Inc. v. McAuliffe, 37 F.3d 1216, 1219

(7th Cir. 1994). Nonetheless, in order to withstand a motion to dismiss, a complaint
must allege facts sufficiently setting forth the essential elements of the cause of action.
Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992).

In reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim, the
court is limited to the allegations contained in the pleadings themselves. Documents
incorporated by reference into the pleadings and documents attached to the pleadings .
as exhibits are considered part of the pleadings for all purposes. Fed.R. Civ.P. 10(c).
IN addition, “documents that a defendant attaches to a motion to dismiss are considered
a part of the pleadings if they are referred to in the plaintiff's complaint and are central
to her claim.” Venture Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th
Cir. 1993). With these principles in mind, the court turns to the instant motion.

DISCUSSION
In support of their motion to dismiss Lawrence’s Second Amended Complaint,
Defendants argue that, based on the United States Supreme Court’s decisions in Heck

v. Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641 (1997),


1994). The prohibition against cruel and unusual punishment necessarily excludes de

minimis uses of physical force. Hudson, 503 U.S. at 9-10. In this case, Lawrence

alleges an unprovoked beating by prison guards, not a de minimis use of force. He
further alleges that this use of force was deliberate and excessive. The court therefore
finds that he has sufficiently stated a claim for excessive force under the Eight
Amendment. See Latiker v. Carter, 1999 WL 1252137 (N.D. Ill. Dec. 20 1999).

The court notes that, in his response to Defendants’ motion, Lawrence raises
facts seemingly pertaining to a claim that his procedural due process rights were
violated during the Adjustment Committee hearing regarding the alleged incident of
excessive force. His Second Amended Complaint, however, does not allege such a
procedural due process claim. As such, these facts are outside the reach of his
complaint. The court surmises that Lawrence raises these facts in an attempt to address
the Defendant’s argument regarding “time” taken from Lawrence. Because we have
already concluded that that argument is inappropriate as to the current complaint, we
do not consider the facts Lawrence raises in response to it.

Finally, the Prison Litigation Reform Act (“PLRA”) requires prisoners to
exhaust “such administrative remedies as are available” before suing over prison
conditions under Section 1983. Booth v. C.O. Chumer, 532 U.S. 731 (2001). A

prisoner’s claim under Section 1983 will be dismissed if the exhaustion requirement

-7-


incident. As a result of this incident, Lawrence sustained a number of injuries to his
face and body. He claims to suffer from fear, trauma, migraine headaches, weight loss,
and loss of sleep.

Based on this incident, Lawrence filed a complaint under Title 42 Section 1983
of the United States Code in November 2000. That complaint, and a subsequent
amended complaint filed on January 3, 2001, have been superseded by Lawrence’s
Second Amended Complaint, filed on March 2, 2001. In his Second Amended
Complaint, Lawrence brings an excessive force claim. He seeks compensatory and
punitive damages.

LEGAL STANDARD
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the

sufficiency of the complaint, not to decide the merits of the case. Triad Assoc., Inc. v.

Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989). In ruling on a motion to
dismiss, the court must first construe the complaint’s allegations in the light most
favorable to the plaintiff and all well-pleaded facts and allegations in the plaintiffs
complaint must be taken as true. Bontkowski v. First Nat’] Bank of Cicero, 998 F.2d
459, 461 (7th Cir. 1993). The allegations of a complaint should not be dismissed for
failure to state a claim “unless it appears beyond a doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle him to relief.” Conley v.

-3-


Lawrence lacks standing to sue under Section 1983.? Defendants base this argument
on allegations Lawrence made in his First Amended Complaint regarding loss of
“time.” See Def. Brief pp. 3-4. They argue that, because Lawrence alleged a
disciplinary decision reducing his good conduct credit in his prior complaint, he must
challenge that disciplinary decision by means other than Section 1983; i.e., by way of
a habeas petition or a declaration of invalidity by a state tribunal. See Heck, 512 U.S.

at 477; Balisok, 520 U.S. at 641; DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000).

Defendants cannot move to dismiss Lawrence’s Second Amended Complaint by
relying on allegations he made in a prior complaint. “It is well established that an
amended complaint supersedes [a prior] complaint.” Kelley v. Crosfield Catalysts, 135
F.3d 1202, 1204 (7th Cir. 1998). In other words, an amended complaint “completely
eliminates the original complaint from the instant litigation.” Laborer’s Pension Fund
vy. Leopardo Const., 139 F.R.D. 634 (N.D. Ill 1991) (quoting Tasner v. Billera, 379 F.
Supp. 809, 824 n. 3 (N.D. Ill. 1974)). Facts not restated in the amended pleading
become functus officio. Kelley, 135 F.3d at 1204. As such, the court may not consider
them on a motion to dismiss an amended complaint for failure to state a claim. Kelley,

135 F.3d at 1204; see Prymer v. Ogden, 29 F.3d 1208, 1215 n. 6 (7th Cir. 1994);

> Defendants also base their argument on dicta in a case decided by Judge
Gottschall. Handy v. Johnson, 1999 U.S. Dist. LEXIS 9130 (N.D. Ill. 1999).

-5-


has not been met. Nash v. Washington, 1999 WL 1251846 (N.D. Ill. Dec. 16, 1999).
The United States Supreme Court recently granted certiorari to decide the issue of
whether the PLRA’s exhaustion requirement applies to claims of excessive force.
Porter v. Nussle, 121 S.Ct. 2213 (2001). We note that the outcome in that case may
affect the future viability of Lawrence’s claim.
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss is denied. Lawrence

may proceed with his excessive force claim.

Charles P. Kocoras
United States District Judge

Dated: December 4, 2001


‘MBiute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Charles P. Kocoras Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 00 C 7285 DATE 12/4/2001
CASE LaSharr Lawrence vs. Shane Walters et al
TITLE
[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) Qo Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due _
(3) a Answer brief to motion due. . Reply to answer brief due.
(4) oO Ruling/Hearing on set for at :
(5) a Status hearing set for 12/12/2001 at 9:45 A.M..
(6) o Pretrial conference[held/continued to] (set for/re-set for] on set for at
(7) o Trial[set for/re-set for] on __at
(8) QO [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) CGeneral Rule 21 CIFRCP41(a\(1) CI FRCP41(a)(2).
do) ow (Other docket entry) ENTER MEMORANDUM OPINION: Defendant’s motion (Doc 27-1) to
dismiss is denied. Lawrence may proceed with his excessive force claim.
(ai [For further detail see order attached to the original minute order.]

No notices required, advised in open court,

No notices required,

o | Notices mailed by judge's staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to jadge/magistrate judge.
} ya

\
\ courtroom
scr deputy's
initials

4

number of notices

Date/time received in
central Clerk’s Office

ailing deputy initials



Schmidt v. Nissan Motor Acceptance Corp., 104 F. Supp.2d 955 (N.D. Ill. 2000);
Smith v. Campagna, 1996 WL 364770, at *2 (N.D. Ill. June 26, 1996); Turner-El v.
Illinois Bd. of Educ., 1996 WL 480341 (N.D. Ill. Aug. 21, 1996); Wynn v. Cooper,
1993 WL 398605, at *5 (N.D. Ill. Oct. 6, 1993). Here, Lawrence has not restated the
allegations in his prior complaint regarding time in his Second Amended Complaint.
Therefore, the Court must reject Defendant’s argument in support of its motion to
dismiss.

Because Defendants raise no other arguments in support of their motion to
dismiss, the Court sua sponte considers whether Lawrence’s Second Amended
Complaint sufficiently states a claim for excessive force under the Eighth Amendment.
See 28 U.S.C. § 1915(e)(2)(B)(ii); 42 U.S.C. § 1997e(c)(1). The use of excessive
force by prison guards against an inmate without penological justification constitutes
cruel and unusual punishment in violation of Eighth Amendment. See Hudson v.
MeMillian, 503 U.S. 1, 9 (1992). The core judicial inquiry is “whether the force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and

sadistically for the very purpose of causing harm.” Hudson, 503 U.S. at 6. Relevant

factors in determining whether the force was excessive include the nature and extent
of the harm, the need for force, the threat to safety of staff and inmates, and the extent

of the injury inflicted on the inmate. Lunsford v. Bennett, 17 F.3d 1574, 1581 (7th Cir.

-6-


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
LaSHARR LAWRENCE, )
)
Plaintiff, )
)
vs. ) 00 C 7285
)
SHANE WALTERS, et al., )
)
Defendants. ) Do CKE
bee TED
0
MEMORANDUM OPINION 5 200

CHARLES P. KOCORAS, District Judge:
This matter is before the court on the Defendants’ Leonardo Lucas (“Lucas”),

Shane Walters (“Walters”), and Travis Lindsay (“Lindsay”),' Rule 12(b)(6) motion to

| There appears to be some confusion as to who the Defendants in this case are.
Lawrence’s response to this motion to dismiss indicates he believes that A. Davis
(“Davis”) is still a party to this action. Defendants assert that he is not because he was
not properly served. Indeed, there is no evidence that Davis was served in the case file.
Accordingly, he is not a party to this action. Additionally, Lawrence’s complaint
includes some allegations directed toward Lieutenant Price. Price was, however,
dismissed from this case pursuant to this courts February 5, 2001 order. Price is no
longer a party to this action. Finally, Lawrence’s complaint also includes some
allegations directed toward a Sargeant Nickerson. This is the first time Sargeant
Nickerson’s name appears in the case file. Sargeant Nickerson was never served. He
is not a party to this action. Therefore, the only Defendants in this case are the

individuals listed above.


dismiss pro se Plaintiff LaSharr Lawrence (“Lawrence”) complaint. For the reasons
set forth below, the motion to dismiss is denied.
BACKGROUND

The following alleged facts are taken from Lawrence’s amended complaint,
which the court is obligated to accept as true for the purposes of this Rule 12(b)(6)
motion to dismiss. On June 25, 2000, Lawrence, an inmate at Stateville Correctional
Center, was moved from his assigned housing unit to the segregation unit. On his way
to the segregation unit, Lawrence was taken to a shakedown room, He was
accompanied by the Defendants.

Shortly after the group entered the shakedown room, the Defendants ordered
Lawrence to cuff up. Lawrence asked why he had to cuff up and asked to speak with
higher authorities. He alleges that Defendants responded to his requests with physical
aggression. Specifically, he alleges that Defendant Walter punched him in the face
causing him to hit his head on the wall and fall to the ground. He further alleges that
Defendants Lindsay and Lucas then picked him up and held him while Walter

repeatedly punched and kicked him. Lawrence was unconscious during part of this

? Ttis not clear if the plaintiff's name is LaSharr Lawrence or Lawrence LaSharr.
The case file contains documents where both versions of the name are used, and
documents where the spelling of LaSharr varies. Having reviewed the case file, the
court concludes that it appears the proper name is LaSharr Lawrence and therefore
refers to plaintiff by that name.

-2-