Fields v. Maue et al

Filing 13

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. The Clerk is DIRECTED to add SGT. WITHOFF, MAJOR DURHAM, and BETSY SPILLER as Defendants in this action. COUNTS 4, 5, 6, and 7 are DISMISSED with prejudice for failure to state a claim up on which relief may be granted. Defendants MAUE, VASQUEZ, MOTT, PHELP, OAKLEY, ATCHISON, GODINEZ, and MORRIS are DISMISSED from this action with prejudice. COUNT 8 and DEFENDANTS NIEPERT AND SPILLER are DISMISSED without prejudice to Plaintiff resta ting this claim in an amended complaint, as instructed below. IT IS HEREBY ORDERED that Plaintiff's claims in COUNTS 2 and 3, which are unrelated to the claims in Count 1, are SEVERED into two new cases. Plaintiff is ADVISED that if, for any re ason, he does not wish to proceed with one or both of the newly-opened cases, he must notify the Court in writing within 35 days. IT IS FURTHER ORDERED that Defendants RESTOFF and ROY are TERMINATED from this action with prejudice.Should Plaintiff w ish to proceed on his claim in COUNT 8 against Defendants Niepert and Spiller, he shall file his First Amended Complaint in this action, stating any facts which may exist to support this claim, within 35 days of the entry of this order. In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED to mail Plaintiff a blank civil rights complaint form.The Clerk of Court shall prepare for Defendants WITHOFF and DURHAM: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). (Action due by 3/15/2013). Signed by Judge G. Patrick Murphy on 2/8/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICHAEL FIELDS, # K-52492,
Plaintiff,
vs.
NATHANIEL MAUE, JASON VASQUEZ,
JEFF MOTT, SERGEANT RESTOFF,
OFFICER ROY, OFFICER PHELP,
LORI OAKLEY,
MICHAEL P. ATCHISON,
SALVADOR GODINEZ, R. NIEPERT,
and K. MORRIS,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 12-cv-1170-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff, currently incarcerated at Menard Correctional Center (“Menard”), has brought
this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving a 40 year
sentence for murder. Plaintiff claims that Defendants have retaliated against him, imposed
punishment on him based on a false disciplinary report, denied him access to the courts, withheld
his books, and subjected him to cruel and unusual punishment by denying him food and housing
him in conditions that aggravated his illnesses.
More specifically, Plaintiff claims that Defendant Maue began “retaliating” against him
on approximately January 27, 2012, by asking him about an alleged incident involving Plaintiff
and Defendant Morris four years earlier (Doc. 1, p. 5). A few days later, Defendant Maue pulled
Plaintiff out of the food line for no reason and sent him back to his cell. This was observed by
Defendants Vasquez and Mott; Vasquez then put Plaintiff on “deadlock” (confinement to cell)

Page 1 of 16

and told him he would be sent to segregation (Doc. 1, p. 6). Defendant Maue wrote a false
inmate disciplinary report (“IDR”), accusing Plaintiff of refusing to show his I.D. Plaintiff
submitted an emergency grievance over this IDR to Defendant Atchison (the warden).
While Plaintiff was on deadlock from January 31 to February 5, 2012, he did not receive
a single food tray on first or second shift, with the exception of one lunch tray on February 5,
2012 (Doc. 1, p. 8). Plaintiff spoke by telephone to his parents on February 6, 2012, and
requested that they call the warden about the denial of food. Plaintiff also informed Defendant
Restoff that he was not being fed, to which he responded, “Tough. What do you want me to do
about it?” as he walked away.
The IDR issued by Defendant Maue was heard on February 9, and Plaintiff was found
guilty (Doc. 1, p. 9). He was punished with segregation. Plaintiff filed another emergency
grievance with Defendant Atchison, which was not addressed within the proper time frame.
However, after Plaintiff’s mother mailed in another copy of this grievance, Plaintiff spoke
personally with Defendant Atchison about his complaints (Doc. 1, p. 10). Plaintiff sent another
grievance to Defendant Oakley on March 15, 2012, to follow up on these issues, but was
informed by her that it was not timely filed.
On March 22, 2012, while Plaintiff was still in segregation, he wrote to Defendant Roy
(the segregation property officer) requesting books that Plaintiff had recently ordered.
Defendant Roy told him that the books were being held in storage, and he refused to release the
books based on the limitation of 25 publications including “books, magazines, Bibles, Qurans,”
etc., in the cell. However, Plaintiff did not have the allotted quantity, however, Defendant Roy
still refused to release the books to him (Doc. 1, pp. 11-12).
Plaintiff was interviewed on April 19, 2012, by Defendant Phelp (of Internal Affairs) in

Page 2 of 16

connection with the IDR and Plaintiff’s complaints about Defendant Maue (Doc. 1, p. 12).
Defendant Phelp told Plaintiff, “Menard can make your life a living hell.” Id.
Plaintiff’s prison classification was changed on April 30, 2012, from “moderate security”
to “high security.” Id.
Plaintiff wrote to Defendant Godinez (Director of the Illinois Department of Corrections)
on May 4, 2012, complaining about these events (Doc. 1-1, p. 13). On May 16, 2012, Defendant
Withoff moved Plaintiff from North II Cell #834 to North II Cell #801, under orders from
Defendant Durham.1 Cell #834 had steel bars and was well-ventilated, but his new Cell #801
had a steel door and poor ventilation. In the hot May weather, these conditions were aggravating
to Plaintiff’s asthma (Doc. 1, p. 13). Plaintiff was released from segregation on May 31, 2012,
and transferred to a different cell (West #303). Then on July 12, 2012, he was moved again, to
West Cell #917. He quickly wrote to Defendant Niepert to inform her of his medical conditions
(asthma, hypertension, and testicular problems), and requested her to “handle the matter”
(Plaintiff does not describe the conditions in Cell #917 or what remedy he sought) (Doc. 1, pp.
14-15). He got no response, so he made the same request to Defendant Spiller.2
Plaintiff seeks an injunction ordering his immediate transfer to another prison, as well as
punitive damages (Doc. 1, pp. 17-18).
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 the following colorable federal claims that shall receive further consideration:
Count 1: Retaliation claim against Defendants Withoff and Durham for moving Plaintiff
to a cell lacking sufficient ventilation after Plaintiff complained to Defendant Godinez;

1

Defendants Sgt. Withoff and Major Durham were inadvertently omitted from the docket sheet. The
Clerk shall be directed to add these parties.
2
Defendant Spiller was also inadvertently omitted from the docket sheet and shall be added.
Page 3 of 16

Count 2: Eighth Amendment unconstitutional conditions claim against Defendant
Restoff for depriving Plaintiff of sufficient food for a period of at least six days;
Count 3: First Amendment claim against Defendant Roy for denying Plaintiff access to
his books, which may have included religious materials.
However, the complaint fails to state a constitutional claim upon which relief may be
granted for the following claims, which shall be dismissed:
Count 4: Retaliation claim against Defendants Maue, Mott, and Vasquez;
Count 5: Verbal harassment and threats by Defendant Maue and Phelp;
Count 6: Access to courts claim against Defendants Atchison, Oakley, and Godinez for
mishandling and/or failing to respond to Plaintiff’s grievances and complaints;
Count 7: Claim for deprivation of a liberty interest without due process against
Defendants Maue and Mott for filing a false IDR leading to Plaintiff’s confinement in
segregation; and
Count 8: Eighth Amendment claim against Defendants Niepert and Spiller for failing to
address Plaintiff’s problems in West Cell #917.
As to Count 4, although Plaintiff alleges that the harassment he experienced from
Defendants Maue, Mott, and Vasquez constituted retaliation, his factual allegations do not
support such a claim. In the prison context, where an inmate is alleging retaliation, the inmate
must identify the reasons for the retaliation, 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). The Plaintiff must have engaged in some
protected First Amendment activity (for example, filing a grievance or otherwise complaining
about conditions of confinement), experienced an adverse action that would likely deter such
protected activity in the future, and must allege that the protected activity was “at least a
motivating factor” in the Defendants’ decision to take the retaliatory action. Bridges v. Gilbert,
557 F.3d 541, 552 (7th Cir. 2009). The inmate need not plead facts to establish the claim beyond

Page 4 of 16

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. Higgs, 286 F.3d at
439.
In the case at bar, Plaintiff never identifies any protected activity on his part prior to
Defendant Maue’s actions, that could have triggered the “retaliation” by Defendant Maue.
Instead, he describes being the target of harassment and punitive actions that bear no connection
to any protected activity by Plaintiff. Courts “should not accept as adequate abstract recitations
of the elements of a cause of action or conclusory legal statements.” Brooks v. Ross, 578 F.3d
574, 581 (7th Cir. 2009). This claim for retaliation rests on just such a conclusory statement.
Even giving liberal construction to the complaint, see Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 821 (7th Cir. 2009), Plaintiff’s factual allegations are insufficient to state a
retaliation claim in Count 4 against Defendants Maue, Mott, or Vasquez.
Similarly, the verbal threats, harassment, and intimidating comments by Defendants
Maue and Phelp (Count 5) do not rise to the level of a constitutional violation. See Dewalt v.
Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“Standing alone, simple verbal harassment does not
constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny
a prisoner equal protection of the laws”).
Although Plaintiff characterizes the claim in Count 6 as a denial of access to the courts,
his fundamental complaint is that Defendants Atchison, Oakley, and Godinez failed to respond
or appropriately handle Plaintiff’s grievances over his IDR, segregation, and related issues.
While the filing or disposition of Plaintiff’s grievances may be relevant in the event Defendants
file a motion to dismiss or for summary judgment, the mishandling of grievances does not itself
give rise to any constitutional claim, for denial of access to the courts or otherwise. An inmate

Page 5 of 16

has no access to courts claim unless he can demonstrate that a non-frivolous legal claim has been
frustrated or impeded. Lewis v. Casey, 518 U.S. 343, 352-53 (1996). Plaintiff has brought his
claim in the instant action with no apparent difficulty. Further, the Constitution requires no
grievance procedure at all, and the failure of state prison officials to follow their own procedures
does not, of itself, violate the Constitution. Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992);
Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982). As such, the alleged mishandling of
grievances “by persons who otherwise did not cause or participate in the underlying conduct
states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011); See also Grieveson v.
Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008); George v. Smith, 507 F.3d 605, 609 (7th Cir.
2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).
The filing of false disciplinary charges by a correctional officer, as alleged in Count 7,
does not state a Fourteenth Amendment claim when the accused inmate is given a subsequent
hearing on those charges in which he is afforded the procedural protections outlined in Wolff v.
McDonnell, 418 U.S. 539 (1974) (advance written notice of the charge, right to appear before the
hearing panel, the right to call witnesses if prison security allows, and a written statement of the
reasons for the discipline imposed). The Seventh Circuit reasoned that prisoners have a right “to
be free from arbitrary actions of prison officials,” Hanrahan v. Lane, 747 F.2d 1137 at 1140 (7th
Cir. 1984), but determined that the procedural protections outlined in Wolff provided the
appropriate protection against arbitrary actions taken by a correctional officer such as issuing the
inmate a fabricated conduct violation.
In the instant complaint, Plaintiff states that he was falsely accused of violating prison
rules by Defendants Maue and Mott. He was given a hearing on the charges, and he does not
allege any improprieties in the conduct of that proceeding.

Page 6 of 16

If the finding of guilt on the false

charge came as the result of a properly conducted hearing, Plaintiff does not have a constitutional
claim so long as the decision of the disciplinary hearing board was supported by “some
evidence.” Black v. Lane, 22 F.3d 1395, 1402 (7th Cir. 1994). Even a meager amount of
supporting evidence, such as the statement of the accusing correctional officer, is sufficient to
satisfy this standard. See Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007). On the other
hand, if Plaintiff was not afforded the procedural protections in Wolff, he still may not have an
actionable claim.
When a plaintiff brings an action under § 1983 for procedural due process violations, he
must show that the state deprived him of a constitutionally protected interest in “life, liberty, or
property” without due process of law. Zinermon v. Burch, 494 U.S. 113, 125 (1990). An inmate
has a due process liberty interest in being in the general prison population only if the conditions
of his or her disciplinary confinement impose “atypical and significant hardship[s] . . . in relation
to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). For
prisoners whose punishment includes being put in disciplinary segregation, under Sandin, “the
key comparison is between disciplinary segregation and nondisciplinary segregation rather than
between disciplinary segregation and the general prison population.” Wagner v. Hanks, 128 F.3d
1173, 1175 (7th Cir. 1997).
The Seventh Circuit has recently elaborated two elements for determining whether
disciplinary segregation conditions impose atypical and significant hardships: “the combined
import of the duration of the segregative confinement and the conditions endured by the prisoner
during that period.” Marion v. Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009)
(emphasis in original).
The first prong of this two-part analysis focuses solely on the duration of disciplinary

Page 7 of 16

segregation.

For relatively short periods of disciplinary segregation, inquiry into specific

conditions of confinement is unnecessary. See Lekas v. Briley, 405 F.3d 602, 612 (7th Cir. 2005)
(56 days); Thomas v. Ramos, 130 F.3d 754, 761 (7th Cir. 1997) (70 days) (“a relatively short
period when one considers his 12 year prison sentence”). In these cases, the short duration of the
disciplinary segregation forecloses any due process liberty interest regardless of the conditions.
See Marion, 559 F.3d at 698 (“we have affirmed dismissal without requiring a factual inquiry
into the conditions of confinement”).
In this case, Plaintiff spent approximately 110 days (February 9 to May 31) in
disciplinary segregation – a long enough period of time to require factual inquiry into the
conditions of segregation (See Doc. 1-1, p. 31). However, with the exception of the two weeks
he spent in the poorly ventilated cell (see Count 1), Plaintiff makes no allegations that the
conditions of his segregation were unusually harsh compared to the normal prison environment.
See Sandin v. Connor, 515 U.S. 472, 486 (1995). Therefore, the complaint fails to state a claim
for deprivation of a liberty interest without due process as a result of the false disciplinary
charges brought by Defendants Maue and Mott.
Additionally, no constitutional claim arises from Plaintiff’s reclassification to “high
security.” “[P]risoners possess neither liberty nor property in their classifications and prison
assignments.” DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th Cir. 1992) (citing Montanye v.
Haymes, 427 U.S. 236 (1976)).
Likewise, Plaintiff’s allegations against Defendants Niepert and Spiller for failing to
respond to Plaintiff’s requests to address his problems in West Cell #917 (Count 8) fall short of
stating a cognizable claim for a constitutional violation. He describes his medical conditions
(asthma, hypertension, and “testicular problems”), and states that he informed these Defendants

Page 8 of 16

of his ailments.

However, he fails to include any facts to indicate whether, or how, the

conditions in that cell affected him in any way, nor does he explain what he specifically
requested Defendants Niepert and Spiller to do. He states only that he “requested that defendant
[Niepert] handle the matter informally,” and that he asked Defendant Spiller to “intervene” when
Defendant Niepert failed to respond (Doc. 1, p. 14). Count 8 shall therefore be dismissed.
However, Plaintiff shall have the opportunity to submit an amended complaint to present any
facts which may support a constitutional claim based on the actions or inaction of Defendants
Niepert and Spiller.
Finally, Defendant Morris shall be dismissed from the action with prejudice. Plaintiff
makes no allegations of wrongdoing whatsoever against her.

He mentions her only in

connection with his harassment/retaliation claims against Defendant Maue, in that Defendant
Morris was the person involved in the alleged four year old incident that was the subject of
Defendant Maue’s questioning of Plaintiff (Doc. 1, pp. 5-6).
One other matter regarding the surviving claims (Counts 1, 2, and 3) requires attention.
In George v. Smith, 507 F.3d 605 (7th Cir. 2007), the Seventh Circuit emphasized that unrelated
claims against different defendants belong in separate lawsuits, “not only to prevent the sort of
morass” produced by multi-claim, multi-defendant suits “but also to ensure that prisoners pay the
required filing fees” under the Prison Litigation Reform Act. George, 507 F.3d at 607, (citing 28
U.S.C. § 1915(b), (g)). The surviving three claims are factually unrelated to each other, and each
involve different defendants: retaliation against Defendants Withoff and Durham (Count 1),
deprivation of food against Defendant Restoff (Count 2), and denial of reading material against
Defendant Roy (Count 3).
Consistent with the George decision and Federal Rule of Civil Procedure 21, the Court

Page 9 of 16

shall sever Counts 2 and 3 into two separate actions, and shall open a new case with a newlyassigned case number for each of these claims. Each new case will result in a new $350.00 filing
fee. However, Plaintiff shall have an opportunity to voluntarily dismiss either or both newly
severed cases if he does not wish to proceed on those claims or incur the additional filing fees.
Pending Motions
Plaintiff’s motion for appointment of counsel (Doc. 3) shall be referred to United States
Magistrate Judge Wilkerson for further consideration.
The motion for status (Doc. 12) is GRANTED in that the status is reflected herein. The
status motion inquires about Plaintiff’s motion for a temporary restraining order (“TRO”), which
he claims to have filed on November 13, 2012. He requests this Court to order his transfer to
another prison (Doc. 12, p. 2-3). No motion for TRO was docketed. However, Plaintiff included
with his complaint a document entitled “Declaration in Support of Plaintiff’s Motion for a
Temporary Restraining Order and Preliminary Injunction” (Doc. 1-1, pp. 20-22).

He also

submitted a memorandum of law in support of his motion for TRO and preliminary injuction
(Doc. 1-1, pp. 24-27). The declaration reiterates the allegations in the complaint, and requests a
TRO ordering “defendants and their constituents” not to come within 100 feet of Plaintiff, and
transferring him to another institution “to prevent further harassment and retaliation, which is
likely to occur” (Doc. 1-1, p. 22).
Construing the above documents as a motion for TRO/preliminary injunction, both
requests are DENIED at this time. A TRO is an order issued without notice to the party to be
enjoined that may last no more than 14 days. FED. R. CIV. P. 65(b)(2). A TRO may issue
without notice only if:
(A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before
Page 10 of 16

the adverse party can be heard in opposition; and (B) the movant=s attorney
certifies in writing any efforts made to give notice and the reasons why it should
not be required.
FED. R. CIV. P. 65(b)(1). Further, the United States Supreme Court has emphasized that a
Apreliminary injunction is an extraordinary and drastic remedy, one that should not be granted
unless the movant, by a clear showing, carries the burden of persuasion.@ Christian Legal Soc’y
v. Walker, 453 F.3d 853, 870 (7th Cir. 2006) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972
(1997) (emphasis in original)). In considering whether to grant injunctive relief, a district court
must weigh the relative strengths and weaknesses of a plaintiff=s claims in light of a five-part test
that has long been part of the Seventh Circuit=s jurisprudence.
Specifically, a plaintiff must establish: (1) that there is a reasonable or substantial
likelihood that he would succeed on the merits; (2) that there is no adequate remedy at law; (3)
that absent an injunction, he will suffer irreparable harm; (4) that the irreparable harm suffered
by plaintiff in the absence of the injunctive relief will outweigh the irreparable harm that
defendants will endure were the injunction granted; and (5) that the public interest would be
served by an injunction. Teamsters Local Unions Nos. 75 and 200 v. Barry Trucking, 176 F.3d
1004, 1011 (7th Cir. 1999). Accord Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010); Pro=s
Sports Bar & Grill, Inc. v. City of Country Club Hills, 589 F.3d 865, 872-73 (7th Cir. 2009).
In light of the Court’s preliminary review of the merits of Plaintiff=s claims and the
dismissal herein of Counts 4, 5, 6, 7, and 8, the undersigned Judge concludes that neither a TRO
nor a preliminary injunction should be issued at this time. Plaintiff=s allegations do not set forth
specific facts demonstrating the likelihood of immediate and irreparable harm before Defendants
can be heard.
Plaintiff also falls short of demonstrating that a preliminary injunction is warranted.

Page 11 of 16

There is no evidence that Plaintiff has attempted to utilize alternative measures that are available
to him to solve his issues. Prison regulations provide for voluntary placement of an inmate in
protective custody where he will be in the presence of different correctional officers, should the
need arise. ILL. ADMIN. CODE tit. 20, § 501.310 (1987). This provides an adequate remedy
should Plaintiff be threatened by Defendants.

Additionally, federal courts must exercise

equitable restraint when asked to take over the administration of a prison, something that is best
left to correctional officials and their staff. See Sandin v. Conner, 515 U.S. 472, 482-83 (1995).
Disposition
The Clerk is DIRECTED to add SGT. WITHOFF, MAJOR DURHAM, and BETSY
SPILLER as Defendants in this action.
COUNTS 4, 5, 6, and 7 are DISMISSED with prejudice for failure to state a claim upon
which relief may be granted. Defendants MAUE, VASQUEZ, MOTT, PHELP, OAKLEY,
ATCHISON, GODINEZ, and MORRIS are DISMISSED from this action with prejudice.
COUNT 8 and DEFENDANTS NIEPERT AND SPILLER are DISMISSED without
prejudice to Plaintiff restating this claim in an amended complaint, as instructed below.
IT IS HEREBY ORDERED that Plaintiff’s claims in COUNTS 2 and 3, which are
unrelated to the claims in Count 1, are SEVERED into two new cases. The new cases shall be:
1) Eighth Amendment unconstitutional conditions claim against DEFENDANT
RESTOFF for deprivation of sufficient food for a period of at least six days (Count 2
herein); and
2) First Amendment claim against DEFENDANT ROY for denial of Plaintiff’s access
to his reading material (Count 3 herein).
The new cases SHALL BE ASSIGNED to the undersigned District Judge for further
proceedings.

In each of the new cases, the Clerk is DIRECTED to file the following

documents:
Page 12 of 16

(1)
(2)
(3)

This Memorandum and Order;
The Original Complaint (Doc. 1) and exhibits;
Plaintiff’s motion to proceed in forma pauperis (Doc. 2).

Plaintiff is ADVISED that if, for any reason, he does not wish to proceed with one or
both of the newly-opened cases, he must notify the Court in writing within 35 days (on or before
March 15, 2013), specifying which case(s) he wishes to voluntarily dismiss. Unless Plaintiff
notifies the Court that he does not wish to pursue the newly opened actions, he will be
responsible for an additional filing fee of $350 in each new case. Service shall not be ordered
on any Defendants in the severed cases until after the deadline for Plaintiff’s response.
IT IS FURTHER ORDERED that the only claim remaining in this action is COUNT 1
against Defendants Withoff and Durham, for retaliation. This case shall now be captioned as:
MICHAEL FIELDS, Plaintiff, vs. SGT. WITHOFF and MAJOR DURHAM, Defendants.
IT IS FURTHER ORDERED that Defendants RESTOFF and ROY are
TERMINATED from this action with prejudice.
Should Plaintiff wish to proceed on his claim in COUNT 8 against Defendants Niepert
and Spiller, he shall file his First Amended Complaint in this action, stating any facts which may
exist to support this claim, within 35 days of the entry of this order (on or before March 15,
2013). The amended complaint must include the allegations designated herein as Count 1, but
shall not include any of the claims severed in Counts 2 and 3, or those dismissed in Counts 4, 5,
6, and 7 above. The amended complaint will be subject to review pursuant to 28 U.S.C. §
1915A. In the event that the claims in Count 8 are not sufficiently related to the claims in Count
1, Count 8 may also be subject to severance into a new action.
An amended complaint supersedes and replaces the original complaint, rendering the
original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1

Page 13 of 16

(7th Cir. 2004). The Court will not accept piecemeal amendments to the original complaint.
Thus, the First Amended Complaint must stand on its own, without reference to any prior
pleading. Should the First Amended Complaint not conform to the requirements herein, it shall
be stricken. Plaintiff must also re-file any exhibits he wishes the Court to consider along with
the First Amended Complaint. Failure to file an amended complaint shall result in the dismissal
of Count 8 becoming a dismissal with prejudice.
In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
The Clerk of Court shall prepare for Defendants WITHOFF and DURHAM: (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

Page 14 of 16

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 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 Donald G. Wilkerson for further pre-trial proceedings, which shall include a
determination on the pending motion for appointment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Wilkerson for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all
parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 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

Page 15 of 16

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: February 8, 2013

s/______________________________
G. PATRICK MURPHY
United States District Judge

Page 16 of 16