United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE
Lambright, a prisoner without a lawyer, filed an amended
complaint. At this stage of the proceedings, “a party
may amend its pleading only with the opposing party's
written consent or the court's leave. The court should
freely give leave when justice so requires.”
Fed.R.Civ.P. 15(a)(2). “Reasons for finding that leave
should not be granted include undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure
to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Airborne
Beepers & Video, Inc. v. AT & T Mobility LLC,
499 F.3d 663, 666 (7th Cir. 2007) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962) (italics omitted).
Though Lambright did not have leave to amend his complaint, I
will construe the amended complaint as including a request
for leave and will consider whether leave should be granted.
now proceeds on a claim against Robert E. Carter, David
Liebel, John Schilling, James Basinger, and Julie Lanham for
money damages for violating his rights under the Free
Exercise Clause by depriving him of a kosher diet from May 9,
2018, to August 12, 2018. ECF 19. He also proceeds on a claim
for injunctive relief against Robert E. Carter in his
official capacity to make religious services available to him
to the extent required by Religious Land Use and
Institutionalized Persons Act. Id. In the proposed
amended complaint, he omits these claims entirely, apparently
seeking to replace these claims with a claim that he is being
served a kosher diet that lacks sufficient nutritional value.
See Flannery v. Recording Indus. Ass'n of Am.,
354 F.3d 632, 638 n.1 (7th Cir. 2004) (“It is axiomatic
that an amended complaint supersedes an original complaint
and renders the original complaint void.”).
Lambright does not describe how the defendants were
personally involved with the kosher diet menu but instead
vaguely alleges that they oversee the kosher diet. “It
is well established that there is no respondeat superior
liability under § 1983.” Gayton v. McCoy,
593 F.3d 610, 622 (7th Cir. 2010). Rather, “[l]iability
depends on each defendant's knowledge and actions, not on
the knowledge or actions of persons they supervise.”
Burks v. Raemisch, 555 F.3d 592, 594 (7th Cir.
2009). Therefore, the proposed amended complaint does not
state a claim against any defendant.
Lambright represents that he chose not to submit a grievance
about the kosher diet, reasoning that it would have been
impractical because the kosher diet is a departmental issue
rather than a facility issue. Pursuant to 42 U.S.C. §
1997e(a), prisoners are required to exhaust available
administrative remedies prior to filing lawsuits in federal
court. “[A] suit filed by a prisoner before
administrative remedies have been exhausted must be
dismissed; the district court lacks discretion to resolve the
claim on the merits, even if the prisoner exhausts
intra-prison remedies before judgment.” Perez v.
Wisconsin Dep't of Corr., 182 F.3d 532, 535 (7th
Cir. 1999). Significantly, the grievance procedure expressly
contemplates food service-related grievances at the
Examples of issues about which an offender may initiate the
grievance process include, but are not limited to: [t]he
substance and requirements of policies, procedures, and rules
of the Department or facility (including but not limited to,
correspondence, staff treatment, medical or mental health,
some visitation, and food service).
Department of Correction, Offender Grievance Process,
available at https://
Moreover, even if Lambright believed that submitting a
grievance was futile, “he had to give the system a
chance.” Flournoy v. Schomig, 152 Fed.Appx.
535, 538 (7th Cir. 2005); Perez, 182 F.3d at 536
(emphasis in original) (“No one can know
whether administrative requests will be futile; the only way
to find out is to try.”). Therefore, even if the
proposed amended complaint stated a plausible claim, I could
not consider it because Lambright did not exhaust his
I observe that the claims in the proposed amended complaint
and the claims on which Lambright now proceeds involve
different periods of time and different types of harms. I
also observe that Lambright filed the proposed amended
complaint nearly a month after the deadline for amended
pleadings and that he offers no explanation for the delay.
Considering untimely nature and the futility of the proposed
amended complaint as well as the prejudice to the defendants,
I deny Lambright leave to proceed on the proposed amended
these reasons, the court:
(1) DENIES the request for leave to amend the complaint; and
(2) DIRECTS the clerk to edit ECF 50 to indicate that it is a