UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA TERRE HAUTE DIVISION CARLOS PEREZ, ) ) Plaintiff, ) ) v. ) No. 2:21-cv-00356-JPH-MKK ) FEDERAL BUREAU OF PRISONS, ) UNITED STATES OF AMERICA, ) ) Defendants. ) ORDER GRANTING DEFENDANTS' MOTION TO STRIKE AMENDED COMPLAINT This action is based on Carlos Perez's allegations that he suffers from chronic kidney disease and that those charged with his custody, medical care, and nourishment have ignored his need for a carbohydrate-free diet. The Court screened Mr. Perez's complaint in April 2022 and identified plausible claims for damages against the United States under the Federal Tort Claims Act (FTCA) and for injunctive relief against the Bureau of Prisons under the Eighth Amendment. Dkt. 15. Mr. Perez named individual defendants in his original complaint, but the Court dismissed claims against them at screening. The Court explained that "'vicarious liability is inapplicable'" to constitutional claims against individual defendants and Mr. Perez failed to "'plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'" Dkt. 15 at 2–3 (quoting Ashcroft v. Iqbal,

(2009)). Conversely, Mr. Perez described the conduct of one individual—Acting Clinic Director Marchan—but did not name him as a defendant. Id. at 3. Accordingly, the Court did not recognize claims against Acting Clinic Director Marchan. Id. On November 18, 2022, Mr. Perez filed an amended complaint naming three defendants: Dr. Ed Marchan, Dr. David Lukens, and Dr. Charles Ackley. Dkt. 39 at 2–3. Like the original, the amended complaint alleges that Mr. Perez's kidneys have been damaged because he has been deprived of a diet that meets his medical needs. Id. at 10. Like the original, the amended complaint

does not describe any act or omission by the individuals named as defendants. The defendants move to strike the amended complaint on grounds that Mr. Perez did not file it in a timely manner, that he did not move for leave to file an amended complaint, and that the amendments would be futile. Dkt. 43. Courts "should freely give leave" to amend pleadings "when justice so requires." Fed. R. Civ. P. 15(a)(2). However, the Court need not grant leave if "it is certain from the face of the complaint that any amendment would be futile or otherwise unwarranted." O'Boyle v. Real Time Resolutions,

(7th Cir. 2018) (quoting Barry Aviation v. Land O'Lakes Mun. Airport Comm'n,

(7th Cir. 2004)). The amendments Mr. Perez presents would be futile. The Court must screen every

complaint filed by a prisoner pursuant to 28 U.S.C. § 1915A. In doing so, the Court must "dismiss the complaint, or any portion of the complaint," if it fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b)(1). Like the original, the amended complaint fails to state a claim against any individual defendant because it includes no allegations of wrongdoing by any individual defendant. It makes no difference that Mr. Perez included allegations against Dr. Marchan in his original complaint. "For pleading purposes, once an amended complaint is filed, the original complaint drops out of the picture." Beal v. Beller,

(7th Cir. 2017). If the Court removed the original complaint from the picture and replaced it with the amended complaint, the only claims remaining would be insufficient claims against individual defendants destined for dismissal. The defendants’ motion to strike, dkt. [43], is granted. The clerk is directed to strike the amended complaint, dkt. [39]. SO ORDERED. Date: 1/6/2023 SJamu Patrick lbanlove James Patrick Hanlon United States District Judge Southern District of Indiana Distribution: CARLOS PEREZ 18674-104 ALLENWOOD - USP ALLENWOOD USS. PENITENTIARY Inmate Mail/Parcels P.O. BOX 3000 WHITE DEER, PA 17887 Julian Clifford Wierenga UNITED STATES ATTORNEY'S OFFICE (Indianapolis) [email protected]