Dees v. Smith et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. The Clerk of Court shall prepare for Defendants Smith, Sisk and Ferguson: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge J. Phil Gilbert on 8/28/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RODNEY DEES,
N78111
Plaintiff,
v.
ANGELA SMITH, JAMES DANIEL
SISK, PATRICK FERGUSON,
Defendants.

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12-CV-625-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at Tamms Correctional Center, has brought this pro se civil
rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that he witnessed guards mistreating
another inmate, Singleton, and after complaining about their treatment of that inmate, Plaintiff
was, the next day, under escort by defendants Smith and Sisk when he was subjected to
unnecessary force by having his handcuffs applied too tightly, cutting off circulation to his hands
and causing severe pain. Then, when being taken to his cell, defendants Sisk and Smith allegedly
pushed him down some stairs and then while removing his handcuffs, Sisk is alleged to have
twisted the handcuffs, causing plaintiff pain, and almost breaking his bones. He alleges that
defendants Sisk and Smith pulled his handcuffed wrist causing his arm to feel dislocated, and he
suffered a laceration to the forehead during this altercation. He further alleges that defendant
Ferguson witnessed this treatment in his cell with the handcuff removal but denied him requested
medical treatment.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of

the complaint. Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has
articulated a colorable federal cause of action against Defendants Smith and Sisk for excessive use
of force and in addition against Ferguson for excessive use of force for failing to intervene (Count
1) and against all three defendants for deliberate indifference to medical needs (Count 2).
The Clerk of Court shall prepare for Defendants Smith, Sisk and Ferguson: (1) Form 5
(Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of
Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint,
and this Memorandum and Order to each Defendant's place of employment as identified by
Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to
the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to
effect formal service on that Defendant, and the Court will require that Defendant to pay the full
costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant's current work address, or, if not
known, the Defendant's last-known address. This information shall be used only for sending the
forms as directed above or for formally effecting service. Any documentation of the address shall
be retained only by the Clerk. Address information shall not be maintained in the court file or
disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a
true and correct copy of the document was served on Defendants or counsel. Any paper received
by a district judge or magistrate judge that has not been filed with the Clerk or that fails to include

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a certificate of service will be disregarded by the Court.
Defendants are 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 Philip M. Frazier for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Philip M.
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.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under Section 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding
that his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give security
for the same, the applicant and his or her attorney were deemed to have entered into a stipulation
that the recovery, if any, secured in the action shall be paid to the Clerk of the Court, who shall pay
therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule
3.1(c)(1)
Finally, Plaintiff is ADVISED that he is under a continuing 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).

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IT IS SO ORDERED.
DATE:

August 28, 2012

s/ J. PHIL GILBERT
UNITED STATES DISTRICT JUDGE

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