Rogers v. Evans et al

Filing 8

MERIT REVIEW OPINION entered by Judge Sue E. Myerscough on 1/7/2014. (MAS, ilcd)

E-FILED

Tuesday, 07 January, 2014 03:30:26 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
HARRY ROGERS,

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Plaintiff,
v.
LARRY EVANS and
STEWART UMHOLTZ,
Defendants.

13-CV-3313

MERIT REVIEW OPINION
Plaintiff, proceeding pro se and incarcerated in Lawrence
Correctional Center, alleges that Defendants obstructed Plaintiff's
efforts to correct the term of Plaintiff's mandatory supervised
release, which had been effectively reduced by an Illinois court
ruling. As a result, Plaintiff was wrongly incarcerated for violating
the terms of an expired mandatory supervised release.
At this point the Court cannot rule out a claim against
Defendants. Once Defendants have appeared, issues of
prosecutorial immunity and whether Plaintiff states a claim can be
explored.
IT IS THEREFORE ORDERED:
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1)

Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the Court finds that Plaintiff states a possible
constitutional claim arising from Defendants' alleged obstruction of
Plaintiff's efforts to correct the term of his mandatory supervised
release. This case proceeds solely on the claims identified in this
paragraph. Any additional claims shall not be included in the
case, except at the Court’s discretion on motion by a party for good
cause shown or pursuant to Federal Rule of Civil Procedure 15.
2)

This case is now in the process of service. Plaintiff is

advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be
denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
3)

The Court will attempt service on Defendants by mailing

each Defendant a waiver of service. Defendants have 60 days from
the date the waiver is sent to file an Answer. If Defendants have not
filed Answers or appeared through counsel within 90 days of the
entry of this order, Plaintiff may file a motion requesting the status
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of service. After Defendants have been served, the Court will enter
an order setting discovery and dispositive motion deadlines.
4)

With respect to a Defendant who no longer works at the

address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
5)

Defendants shall file an answer within 60 days of the

date the waiver is sent by the Clerk. A motion to dismiss is not an
answer. The answer should include all defenses appropriate under
the Federal Rules. The answer and subsequent pleadings shall be
to the issues and claims stated in this Opinion. In general, an
answer sets forth Defendants' positions. The Court does not rule
on the merits of those positions unless and until a motion is filed by
Defendants. Therefore, no response to the answer is necessary or
will be considered.

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6)

This District uses electronic filing, which means that,

after Defense counsel has filed an appearance, Defense counsel will
automatically receive electronic notice of any motion or other paper
filed by Plaintiff with the Clerk. Plaintiff does not need to mail to
Defense counsel copies of motions and other papers that Plaintiff
has filed with the Clerk. However, this does not apply to discovery
requests and responses. Discovery requests and responses are not
filed with the Clerk. Plaintiff must mail his discovery requests and
responses directly to Defendants' counsel. Discovery requests or
responses sent to the Clerk will be returned unfiled, unless they are
attached to and the subject of a motion to compel. Discovery does
not begin until Defense counsel has filed an appearance and the
Court has entered a scheduling order, which will explain the
discovery process in more detail.
7)

Counsel for Defendants is hereby granted leave to depose

Plaintiff at his place of confinement. Counsel for Defendants shall
arrange the time for the deposition.
8)

Plaintiff shall immediately notify the Court, in writing, of

any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing address
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or phone number will result in dismissal of this lawsuit, with
prejudice.
9)

If a Defendants fails to sign and return a waiver of service

to the clerk within 30 days after the waiver is sent, the Court
will take appropriate steps to effect formal service through the
U.S. Marshal's service on that Defendant and will require that
Defendant to pay the full costs of formal service pursuant to
Federal Rule of Civil Procedure 4(d)(2).
IT IS FURTHER ORDERED:
10)

Plaintiff's petition to proceed in forma pauperis is granted

(d/e 2). The clerk is directed to enter the standard order
assessing an initial partial filing fee and to attempt service on
Defendants pursuant to the standard procedures;
ENTERED:

January 7, 2014

FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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