Griffin v. Lehman et al

Filing 18

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, Denying 11 MOTION to Dismiss. Philip M. Frazier added. W Lehman, Lt. Pitts, Brad Wiesel, A Beggs and Julien terminated with prejudice. Walters, Thomas, Parmlee and Lt. Lockridge terminat ed without prejudice. Plaintiff is ADVISED that the Court is inclined to sever the claims against Defendants Baney and Chamness. If these claims are severed, they would be removed from this case and opened in a new case. A new case number would be assigned and a second filing fee would be assessed. Plaintiff is FURTHER ADVISED that he may avoid severance (and the imposition of a second filing fee) by filing a motion to voluntarily dismiss Defendants Baney and Chamness without prejudice withi n 45 days of the date of this order. (Action due by 7/7/2011). The Court reserves ruling on the disposition of the claims against Defendants BANEY and CHAMNESS until the severance issue has been resolved, and service shall not be completed on these defendants until that point. The Clerk of Court is DIRECTED to complete, on Plaintiffs behalf, a summons and form USM-285 for service of process on Defendant AUTERSON; the Clerk shall issue the completed summons. The United States Marshal SHALL ser ve Defendant AUTERSON pursuant to Rule 4(e) of the Federal Rules of Civil Procedure. All costs of service shall be advanced by the United States, and the Clerk shall provide all necessary materials and copies to the United States Marshals Service. Service shall not be made on the Unknown (John Doe) Defendants SHU STAFF until such time as Plaintiff has identified them by name in a properly filed amended complaint. IT IS FURTHER ORDERED that Plaintiff shall file an amended complaint with this C ourt, providing the names of the John Doe Defendants SHU STAFF within 63 days of the date of this order. Failure to file an amended complaint may result in the dismissal of the claims against SHU STAFF pursuant to Federal Rule of Civil Procedure 41( b). (Amended Pleadings due by 7/25/2011). In addition, pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall (1) personally deliver to or send by registered or certified mail addressed to the civil-process clerk at the office of the Uni ted States Attorney for the Southern District of Illinois a copy of the summons, the complaint, and this Memorandum and Order; and (2) send by registered or certified mail to the Attorney General of the United States at Washington, D.C., a copy of the summons, the complaint, and this Memorandum and Order. Signed by Judge J. Phil Gilbert on 5/19/2011. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

WILLIE J. GRIFFIN, JR., #04667-017
Plaintiff,
vs.
W. LEHMAN, et al.,
Defendants.

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CIVIL NO. 11-cv-110-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, an inmate currently in the Federal Correctional Institute in Yazoo City, Mississippi,
was at all times relevant to this action housed in the United States Penitentiary in Marion, Illinois.
Plaintiff brings this action for alleged violations of his constitutional rights by persons acting under
the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). This
case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C.
§ 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any event,
as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.

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28 U.S.C. § 1915A. An action or claim is frivolous if “it lacks an arguable basis either in law or in
fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which
relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). Upon careful review of the
complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under
§ 1915A; portions of this action are subject to summary dismissal.
Facts:
The following version of the facts of this case is gleaned from Plaintiff’s amended complaint
(Doc. 17). Plaintiff was expecting visitors at the USP Marion, and informed Defendant Wiesel so
that the visitors’ information could be put into the computer system prior to the visit, per prison
policy. However, Defendant Wiesel failed to put the information in the system, and did not inform
other staff of his oversight. As a result, Defendant Pitts turned Plaintiff’s visitors away because there
was no information on them in the system. When Plaintiff was taken to the visiting area in
anticipation of receiving his visitors, he was told by Defendant Wiesel to wait there, which
Defendant Pitts witnessed. Defendant Lehman then came by and wrote Plaintiff a disciplinary ticket
for being in an unauthorized area. Defendant Beggs wrote a memorandum supporting Defendant
Lehman’s decision to write Plaintiff a ticket.
Plaintiff was then given a disciplinary hearing regarding the incident. Defendant Auterson,
who presided over the hearing, found Plaintiff guilty without considering the evidence; Defendant
Auterson did not call witnesses and Plaintiff was not shown any written statements prepared by
witnesses. Plaintiff was given 30 days of segregation as a result of the hearing. Thereafter, Plaintiff
made requests of Defendant Julien, including a request to take a polygraph test to clear him of guilt.
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Even though Plaintiff offered to pay for the test, this request was denied by Defendant Julien, along
with other requests.1
After Plaintiff was placed in segregation, John Doe members of the SHU Staff began
retaliating against Plaintiff by denying him recreation periods on February 17 and 18 as well as
March 4 and 5; denying him haircuts on March 6 and 15; and denying him phone privileges the week
of March 7-12, 2010, claiming that the phone was out of order. At an unspecified time Plaintiff
began to be denied access to the law library, and this denial lasted for three months. Further,
Plaintiff was placed in a one-man cell with another inmate, and was forced to sleep on the floor with
his feet under the cell toilet. On March 21, 2010, Plaintiff submitted a grievance, complaining about
the second-hand smoke generated by SHU staff, as well as the handling of food trays by staff with
bare hands.
Some time later, Plaintiff agreed to act as a witness for his cellmate in a disciplinary hearing.
On December 23, 2010, Defendants Baney and Chamness came to Plaintiff’s cell and threatened
Plaintiff by stating “you don’t want to burn that bridge with me” in reference to Plaintiff’s witness
statement. Ultimately witnesses were not called for the hearing. At some unspecified time,
Defendant Chamness made Plaintiff miss a phone conference wherein Plaintiff was supposed to
participate in a court hearing. Because Plaintiff missed the phone hearing, a judgment was entered
against him.
Discussion:
To facilitate the orderly management of future proceedings in this case, and in accordance

1

Plaintiff does not state in his complaint what these other requests were or if they were
related to the incidents that are the subject of this suit.
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with the objectives of FED. R. CIV. P. 8(e) and 10(b), the Court finds it appropriate to break the
claims in Plaintiff’s pro se complaint and other pleadings into numbered counts, as shown below.
The parties and the Court will use these designations in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The designation of these counts does not
constitute an opinion as to their merit.
Count 1:

Visitors

Plaintiff alleges that Defendants Wiesel and Pitts denied him access to his visitors, in
violation of his constitutional rights. However, prisoners do not have a fundamental right to
visitation arising directly from the Constitution. Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454
(1989). “The denial of prison access to a particular visitor ‘is well within the terms of confinement
ordinarily contemplated by a prison sentence,’ and therefore is not independently protected by the
Due Process Clause.” Id. at 461 (citing Hewitt v. Helms, 459 U.S. 460 (1983)).
Statutes and regulations may limit the discretion of officials to act and thereby give an inmate
a constitutionally protected liberty interest in receiving visitors; determining whether such an interest
exists requires a court “to examine closely the language of the relevant statutes and regulations.”
Thompson, 490 U.S. at 461. A regulation creates a liberty interest when it contains “language
creating ‘substantive predicates’ to guide discretion” exercised by prison officials, and “‘explicitly
mandatory language,’ i.e., specific directives to the decision maker that if the regulations’ substantive
predicates are present, a particular outcome must follow. . . .” Id. at 462-63.
The Bureau of Prisons’ visiting regulations are contained in 28 C.F.R. § 540, Part D:
The Bureau of Prison encourages visiting by family, friends, and community groups
to maintain the morale of the inmate and to develop closer relationships between the
inmate and family members or others in the community. The Warden shall develop
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procedures consistent with this rule to permit inmate visitation. The Warden may
restrict inmate visitation when necessary to insure the security and good order of the
institution.
28 C.F.R. § 540.40. The regulations provide general guidance as to the scheduling of visits, the
arrangement of the visiting facilities, and certain special visits not at issue here. The warden keeps
a list of visitors for each inmate, and procedures are designated in 28 C.F.R. § 540.51 for
investigation of visitors and their approval for the list. However, procedural regulations do not
create liberty interests. Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982). The only regulation setting
forth substantive criteria regarding the addition of “regular visitors” to an inmate's list is 28 C.F.R.
§ 540.44:
An inmate desiring to have regular visitors must submit a list of proposed visitors to
the designated staff. Staff shall compile a visiting list for each inmate after suitable
investigation (see § 540.51(b)). The list may include:
(a) Members of the immediate family . . .
(b) Other relatives . . .
(c) Friends and associates:
The visiting privilege ordinarily will be extended to friends and associates
having an established relationship with the inmate prior to confinement,
unless such visits could reasonably create a threat to the security and good
order of the institution.
(d) Persons with prior criminal convictions. . .
(e) Children under sixteen. . . .
28 C.F.R. § 540.44. The Court finds that this regulation lacks the “explicitly mandatory language”
required for a finding that the regulation requires a particular outcome when factual predicates are
met. The “visiting privilege ordinarily will be extended to friends and associates;” such language
does not compel a result, it merely indicates a norm, from which some deviation is possible.
Moreover, § 540.44 describes whom the warden “may” include on the visitor list, and nothing in the
regulation indicates that the warden must include anyone on an inmate's regular visitor list.
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When no protected liberty interest is involved, an inmate has no right to due process before
visitors are denied, and the privilege may be denied for any reason or no reason at all, except for a
reason that is constitutionally impermissible. No impermissible motive is suggested here. Plaintiff
simply states that Defendant Wiesel forgot to add his visitors’ information to the system, and for this
reason Defendant Pitts turned the visitors away. This does not alone rise to a constitutional
violation, as discussed above. For this reason, this Count is dismissed with prejudice, for failure to
state a claim upon which relief can be granted.
Count Two: Disciplinary Ticket
Plaintiff next claims that Defendants Lehman and Beggs violated his constitutional rights
when Defendant Lehman wrote Plaintiff a disciplinary ticket for being in an unauthorized area and
Defendant Beggs wrote a memorandum supporting the ticket. A plaintiff states a claim for violation
of procedural due process rights when he alleges that defendants have filed and/or approved
disciplinary tickets, reports, and other documents that contain false charges that are not supported
by any evidence. Webb v. Anderson, 224 F.3d 649 (7th Cir. 2000); Black v. Lane, 22 F.3d 1395 (7th
Cir. 1994). The issuance of these documents containing false statements rises to a substantive due
process violation where the charges were fabricated in retaliation for the plaintiff’s exercise of a
constitutional right. Black at 1402-03; see also Cain v. Lane, 875 F.2d 1139, 1145 (7th Cir. 1988);
Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989) (stating that the filing of a false disciplinary
charge against a prisoner is actionable where it is done for retaliatory purposes). However, in
Hanrahan v. Lane, 747 F.2d 1137, 1140-41 (7th Cir. 1984), the Seventh Circuit held that the filing
of false disciplinary charges by a correctional officer does not state a Fourteenth Amendment claim
when the accused inmate is given a subsequent hearing on those charges in which the inmate is
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afforded the procedural protections outlined in Wolff v. McDonnell, 418 U.S. 539 (1974).
Plaintiff alleges that the ticket written by Defendant Lehman and supported by Defendant
Beggs violated his due process rights because it was written without consulting other correctional
officers, specifically Defendant Wiesel, who told Plaintiff to remain in the “unauthorized location”
in which he was found. From the complaint filed by Plaintiff, it seems as if he was standing in the
visitation area and Defendants Lehman and Beggs just happened upon him. Because his visitation
information was not in the computer system, Plaintiff was technically in an unauthorized area, which
is why he was written a disciplinary ticket. Thus, it cannot be said that the ticket contained false
statements, because it stated the literal truth: that Plaintiff was found in an area where he was not
authorized at that time to be. There is also no indication that the ticket was written in retaliation for
any actions taken by Plaintiff. It seems that Defendants Lehman and Beggs were following protocol
when they issued Plaintiff a ticket for being in an unauthorized location, see 28 C.F.R. § 541.13,
Table 3: Code 316, and any defenses Plaintiff may have had could be raised in the disciplinary
hearing that he would have on the ticket. See Hanrahan, 747 F.2d at 1140-41. As a result, neither
Defendant Lehman nor Defendant Beggs violated Plaintiff’s constitutional rights when he was issued
a disciplinary ticket for being in an unauthorized area. Count 2 is thereby dismissed with prejudice.
Count Three:

Disciplinary Hearing

Plaintiff next alleges that his right to due process was violated when Defendant Auterson
found him guilty without consulting evidence, interviewing witnesses, or giving Plaintiff the
opportunity to review whatever evidence Defendant Auterson may have considered. Prison
disciplinary hearings satisfy procedural due process requirements where an inmate is provided: (1)
written notice of the charge against the prisoner twenty four (24) hours prior to the hearing; (2) the
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right to appear in person before an impartial body; (3) the right to call witnesses and to present
physical/documentary evidence, but only when doing so will not unduly jeopardize the safety of the
institution or correctional goals; and (4) a written statement of the reasons for the action taken
against the prisoner. See Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974); Cain v. Lane, 857 F.2d
1139, 1145 (7th Cir. 1988). Not only must the requirements of Wolff be satisfied, but the decision
of the disciplinary hearing board must be supported by “some evidence.” Black v. Lane, 22 F.3d
1395, 1402 (7th Cir. 1994). To determine whether this standard has been met, courts must determine
whether the decision of the hearing board has some factual basis. Webb v. Anderson, 224 F.3d 649
(7th Cir. 2000).
Plaintiff alleges that he had witnesses who would testify that Defendant Wiesel informed
Plaintiff that he was to remain where he was, in the “unauthorized” area. However, these witnesses
were not called. The right to call witnesses was considered in the Wilkinson v. Austin case, where
it was determined that a prison has a legitimate interest in controlling individual inmates as well as
the prison in general, and that this interest is threatened by allowing inmates the opportunity to call
witnesses to disciplinary hearings, making the potential value of the witness testimony small in
comparison to the cost to security. Wilkinson v. Austin, 545 U.S. 209, 228 (2005). Where the
inquiry draws more on the experience of prison administrators, and where the prison's interest
implicates the safety of other inmates and prison personnel, the informal, nonadversary procedures
set forth in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1
(1979) and Hewitt v. Helms, 459 U.S. 460 (1983), provide the appropriate model. Wilkinson v.
Austin, 545 U.S. 209, 229 (2005).
Were an inmate allowed to call witnesses or be provided other attributes of an adversary
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hearing, both the prison’s immediate objective of controlling the prisoner and its greater objective
of controlling the prison could be defeated. This problem, moreover, is not alleviated by providing
an exemption for witnesses who pose a hazard, for nothing in the record indicates simple
mechanisms exist to determine when witnesses may be called without fear of reprisal. The danger
to witnesses, and the difficulty in obtaining their cooperation, make the probable value of an
adversary-type hearing doubtful in comparison to its obvious costs. Id. at 228. Thus, a due process
violation is not implicated simply because Plaintiff’s witnesses were not called.
However, Plaintiff further alleges that Defendant Auterson failed to review any evidence
before making the determination of guilt. Plaintiff insinuates that there was no evidence, and bases
this statement on the fact that he was never given a chance to review any evidence. Disciplinary
hearing decisions must be based on “some evidence,” Black, 22 F.3d at 1402, but according to
Plaintiff there was no evidence. Because it is unclear at this point what, if any, evidence Defendant
Auterson reviewed in making the finding of guilt, this count cannot be dismissed at this point in the
litigation.
Count Four: Polygraph
Plaintiff next alleges that Defendant Julien violated his constitutional rights when Plaintiff’s
request to take a polygraph test, in an effort to prove his innocence, was denied along with other
requests.2 However, even where Plaintiff sought to take the polygraph test to prove his innocence,
and even where he has offered to pay for it himself, he has no constitutional right to such a test.

2

As stated previously, Plaintiff does not elaborate on what other requests he has made of
Defendant Julien. As such, it is impossible for the Court to determine whether the denial of any
of these requests amounts to a constitutional violation. Therefore, the Court will rule only on the
denial of the request for a polygraph test.
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Inmates are not entitled to take a polygraph test in an attempt to disprove guilt. See Jemison v.
Knight, 244 F. App’x 39, 42 (7th Cir. 2007); Freitas v. Auger, 837 F.2d 806, 812 n. 13 (8th Cir. 1988)
(holding that prisoners are not entitled to polygraph tests in disciplinary hearings); see also Outlaw
v. Wilson, No. 07-cv-54, 2007 WL 1295815 (N.D. Ind. April 30, 2007) (inmate had no right to
require prison staff to create favorable evidence in the form of a lie detector test).
Though Plaintiff may have had the honorable intention of clearing his name when making
the request to take the polygraph test, he is not required by law to have access to the test to disprove
guilt, even if he has offered to foot the bill himself. As such, Plaintiff has not alleged that Defendant
Julien violated any of Plaintiff’s constitutional rights when he denied the polygraph request. This
Count is thus dismissed with prejudice.
Count Five: Retaliation
Plaintiff next alleges that once he arrived in segregation, Defendants John Doe SHU Staff
members began retaliating against Plaintiff. Specifically, during the year 2010 he was denied
recreational time on February 17, 18, and March 4, 5; denied haircuts on March 6 and 15; and was
denied use of the phone from March 7 through March 12 because the phone was allegedly out of
service. At some unspecified time Plaintiff began being restricted from use of the law library, a
restriction that lasted for three months. Further, Plaintiff was placed in a one-man cell with another
inmate, and was forced to sleep on the floor with his feet under the toilet. Plaintiff seems to indicate
that the retaliation may have been the result of a complaint he filed on March 21 about the secondhand smoke generated by SHU staff members which entered the facility through windows, as well
as the bare-handling of food trays by staff members.
The Supreme Court has stated that there are no special pleading requirements for prisoner
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civil rights cases. See Swierkiewicz v. Sorema, 534 U.S. 506, 513-14 (2002); Leatherman v. Tarrant
Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993); Kyle v. Morton High
School, 144 F.3d 448, 455 (7th Cir. 1998) (per curiam). Where a complaint complies with federal
rules, in that it provides a short and plain statement of the facts, it cannot then be dismissed for
failure to sufficiently allege facts that prove the claim(s) alleged. Fed. R. Civ. P. 8; see Nance v.
Vieregge, 147 F.3d 589, 590-91(7th Cir. 1998) (complaint need not plead facts to establish that the
claim(s) are sufficiently valid). It is sufficient for a plaintiff to state enough of the bare facts in the
complaint to apprise the defendants(s) of the claims brought against them. Beanstalk Grp. Inc. v. AM
General Corp., 283 F.3d 856, 863 (7th Cir. 2002); Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d
1039, 1041 (7th Cir. 1999). In the prison context, where an inmate is alleging retaliation, it is not
enough to simply state the cause of action. The inmate must identify the reasons that retaliation has
been taken, as well as “the act or acts claimed to have constituted retaliation,” so as to put those
charged with the retaliation on notice of the claim(s). Higgs v. Carver, 286 F.3d 437, 439 (7th Cir.
2002). As stated above, the inmate need not plead facts to establish the claim beyond doubt, but
need only provide the bare essentials of the claim, and in a claim for retaliation the reason for the
retaliation and the acts taken in an effort to retaliate suffice. Id.
In the instant action, Plaintiff has attempted to plead retaliation by pointing to the denial of
recreation times, haircuts, phone use, and library use, as well as being housed in a one-man cell with
another inmate as the action taken against him in an effort to retaliate. In his complaint, Plaintiff
points only to his complaint lodged against staff regarding second-hand smoke and handling of food
trays as the cause of the retaliation. This grievance was filed on March 21, after a number of the
actions Plaintiff alleges were retaliatory took place (recreation times were denied February 17, 18
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and March 4, 5; haircuts were denied March 6, 15; phone use was denied March 7 through 12).
However, it is unclear at this point whether staff members knew Plaintiff was going to file the
complaint, and took these actions in an effort to intimidate Plaintiff so that he would not file it.
Further, Plaintiff did not provide dates in his complaint as to when he began to be denied access to
the library or when he was placed in a one-man cell with a cellmate, so it is unclear whether these
actions were taken before or after the complaint was filed. Because it is unclear which of these
actions, if any, were taken in retaliation for Plaintiff’s complaint, this count cannot be dismissed at
this time.
Count 6:

Severable Claims

Plaintiff attempts to bring claims against Defendant Baney and Chamness for intimidation
and retaliation because Plaintiff agreed to serve as a witness for his cellmate’s disciplinary hearing.
However, these claims do not relate to the other claims in Plaintiff’s complaint as required by Rule
20(a)(2) of the Federal Rules of Civil Procedure. And while Rule 18(a) of the Federal Rules of Civil
Procedure permits Plaintiff to assert all of his claims against one defendant in one civil action,
Defendants Baney and Chamness are not named elsewhere in Plaintiff’s complaint. As such, the
attempted joinder of Defendants Baney and Chamness with the other named Defendants is improper.
The Seventh Circuit recently confirmed that separate, unrelated claims belong in different
suits. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). On review of the complaint, the claims
against Defendants Baney and Chamness are not sufficiently related to the claims against Defendants
Lehman, Beggs, Auterson, Wiesel, Pitts, SHU Staff, and Julien so as to allow them to proceed
together in one lawsuit.
Plaintiff is ADVISED that the Court is inclined to sever the claims against Defendants
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Baney and Chamness. If these claims are severed, they would be removed from this case and opened
in a new case. A new case number would be assigned and a second filing fee would be assessed.
Because the imposition of a second filing fee may impose a financial burden on him, Plaintiff
is FURTHER ADVISED that he may avoid severance (and the imposition of a second filing fee)
by filing a motion to voluntarily dismiss Defendants Baney and Chamness without prejudice within
45 days of the date of this order. Before filing that motion, Plaintiff shall consider whether he could
re-file the dismissed claims without running afoul of the applicable 2-year statute of limitations.
Unspecified Defendants:
Even though they are named in the caption of the complaint, Plaintiff has failed to state any
claims against Defendants Walters, Parmlee, Lockridge, or Thomas in the complaint. The reason
that plaintiffs, even those proceeding pro se, for whom the Court is required to liberally construe
complaints, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), are required to associate specific
defendants with specific claims is so these defendants are put on notice of the claims brought against
them and so they can properly answer the complaint. “Federal Rule of Civil Procedure 8(a)(2)
requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’
in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.’” Conley v. Gibson, 355 U.S. 41, 47 (1957).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007). Thus, where a plaintiff has not included a defendant in his statement of the claim, the
defendant cannot be said to be adequately put on notice of which claims in the complaint, if any, are
directed against him. Furthermore, merely invoking the name of a potential defendant is not
sufficient to state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir.
1998) (“A plaintiff cannot state a claim against a defendant by including the defendant’s name in the
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caption.”).
Plaintiff has not included claims against Defendant Walters, Parmlee, Lockridge, or Thomas
in his complaint. Thus, these Defendants have not been adequately apprised of the claims Plaintiff
may have against them. Because of this deficiency, Defendants Walters, Parmlee, Lockridge, and
Thomas are dismissed from this action without prejudice.
Pending Motions:
On March 3, 2011, Plaintiff filed a Motion to Voluntarily Dismiss the action presently before
the Court (Doc. 11). In that motion, Plaintiff stated that it was not his intention to file a civil
complaint at that time. However, Plaintiff filed a motion to amend his complaint, along with an
amended complaint on April 25, 2011 (Doc. 13). The Court interprets this action as a change of
heart on Plaintiff’s part, and therefore the earlier filed Motion to Voluntarily Dismiss (Doc. 11) is
DENIED. Should Plaintiff decide that he does, in fact, want to voluntarily dismiss the current
action, he may file a new motion.
Disposition:
IT IS HEREBY ORDERED that Defendants WIESEL, PITTS, LEHMAN, BEGGS, and
JULIEN are DISMISSED from this action with prejudice. Defendants WALTERS, PARMLEE,
LOCKRIDGE and THOMAS are DISMISSED from this action without prejudice. The Court
reserves ruling on the disposition of the claims against Defendants BANEY and CHAMNESS until
the severance issue has been resolved, and service shall not be completed on these defendants until
that point.
The Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons and form
USM-285 for service of process on Defendant AUTERSON; the Clerk shall issue the completed
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summons. The United States Marshal SHALL serve Defendant AUTERSON pursuant to Rule 4(e)
of the Federal Rules of Civil Procedure.3 All costs of service shall be advanced by the United States,
and the Clerk shall provide all necessary materials and copies to the United States Marshals Service.
Service shall not be made on the Unknown (John Doe) Defendants SHU STAFF until such
time as Plaintiff has identified them by name in a properly filed amended complaint. It is Plaintiff’s
responsibility to provide the Court with the names and service addresses for these individuals. IT
IS FURTHER ORDERED that Plaintiff shall file an amended complaint with this Court, providing
the names of the John Doe Defendants SHU STAFF within 63 days of the date of this order.
Failure to file an amended complaint may result in the dismissal of the claims against SHU STAFF
pursuant to Federal Rule of Civil Procedure 41(b).
In addition, pursuant to Federal Rule of Civil Procedure 4(i), the Clerk shall (1) personally
deliver to or send by registered or certified mail addressed to the civil-process clerk at the office of
the United States Attorney for the Southern District of Illinois a copy of the summons, the complaint,
and this Memorandum and Order; and (2) send by registered or certified mail to the Attorney General
of the United States at Washington, D.C., a copy of the summons, the complaint, and this
Memorandum and Order.
IT IS FURTHER ORDERED that Plaintiff shall serve upon the Defendant, or if an

3

Rule 4(e) provides, “an individual – other than a minor, an incompetent person, or a
person whose waiver has been filed – may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general
jurisdiction in the state where the district court is located or where service is made; or (2) doing
any of the following: (A) delivering a copy of the summons and of the complaint to the
individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of
abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of
each to an agent authorized by appointment or law to receive service of process.”
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appearance has been entered by counsel, upon that attorney, a copy of every pleading or other
document submitted for consideration by this Court. Plaintiff shall include with the original paper
to be filed a certificate stating the date that a true and correct copy of the document was mailed to
each defendant or counsel. Any paper received by a district judge or a magistrate judge which has
not been filed with the Clerk or which fails to include a certificate of service will be disregarded by
the Court.
Defendant AUTERSON is ORDERED to timely file an appropriate responsive pleading to
the complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Frazier for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Frazier for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties
consent to such a referral.
Finally, Plaintiff is ADVISED that he is under an obligation to keep the Clerk of Court and
each opposing party informed of any change in his address; the Court will not independently
investigate his whereabouts. This shall be done in writing and not later than 7 days after a transfer
or other change in address occurs. Failure to comply with this order will cause a delay in the
transmission of court documents and may result in dismissal of this action for want of prosecution.
See FED . R. CIV . P. 41(b).
IT IS SO ORDERED.
DATED: May 19, 2011
s/J. Phil Gilbert
United States District Judge

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