Wilborn v. Shicker et al

Filing 39

IT IS HEREBY ORDERED that Plaintiff Wilborn's motion for reconsideration of the severance of Count 7-9 from this action (Docs. 24 , 35 ) is DENIED. The Clerk of Court is DIRECTED to have the record reflect that the Court's Order to Sh ow Cause (Doc. 33 ) has been SATISFIED by Plaintiff's response (Doc. 37 ). IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, Plaintiff Wilborn's motions for pauper status and for service of summons and the complaint at government expense (Docs. 25 , 32 ) are GRANTED. Consequently, Plaintiff's motion for action on all pending motions (Doc. 38 ) is DENIED AS MOOT. The Clerk of Court shall prepare for Defendants DAVIS EALEY, WILLIAM JOHNSON, BENNETT, LLOYD, MR. HENRY, OFFICER STARKWEATHER, A. WALTER, REES, SHELBY DUNN, LAKEISHA HAMBY and CHRISTOPHER PHEMISTER: (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 6/13/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH WILBORN, No. R-17937,
Plaintiff,
vs.
DAVID EALEY,
WILLIAM JOHNSON,
BENNETT,
LLOYD,
MR. HENRY,
OFFICER STARKWEATHER,
A. WALTER,
REES,
SORT TEAM DRIVERS,
TAC TEAM,
SHELBY DUNN,
LAKEISHA HAMBY,
CHRISTOPHER PHEMISTER, and
OTHER UNKNOWN STAFF,
Defendants.

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CIVIL NO. 13-cv-00070-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Joseph Wilborn, currently incarcerated at Pontiac Correctional Center, has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 pertaining to events at
Menard Correctional Center (“Menard”) and Tamms Correctional Center (“Tamms”).1 Plaintiff
contends that after prison officials at Menard severely beat him in July 2011, rather than
providing him with medical care for his injuries, they transported him overnight to Tamms,
where he was denied care and retaliated against in various ways for more than a year. The
original complaint enumerated nine separate claims (Doc. 13). By Order dated February 20,

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Tamms Correctional Center closed in January 2013.

2013 (Doc. 23), Counts 1-6 were permitted to proceed, while Counts 7-9 were severed into three
new cases, pursuant to George v. Smith, 507 F.3d 605 (7th Cir. 2007). Plaintiff was given the
opportunity to opt out of the newly severed cases, each of which would require an additional
$350.00 filing fee to be paid. Because Plaintiff had paid the initial filing fee for the present
action, he was directed to show cause why he should not bear the costs of service of summons
and the complaint upon the defendants (Doc. 33).
Plaintiff is now before the Court seeking reconsideration of the severance decision (Docs.
24, 35). He is also attempting to secure pauper status for purposes of having service of process
effected by the United States Marshal at government expense (Docs. 25, 32). Each issue will be
addressed in turn.
1. Current Procedural Posture
At this juncture, Plaintiff’s nine claims stand as follows:
Wilborn v. Shicker, et al., No. 13-cv-00070-JPG
(the present case)
Count 1:

Against Menard correctional officers Johnson, Bennett, Lloyd, Ealey,
Starkweather, Henry and unknown staff for subjecting Plaintiff to
excessive force—beating him and spraying mace in his face, in
violation of the Eighth Amendment;

Count 2:

Against Major Rees and other unknown officials who exhibited
deliberate indifference when they watched Plaintiff being attacked and
failed to intervene, in violation of the Eighth Amendment;

Count 3:

Against Defendants Johnson, Bennett, Lloyd, Ealey, Starkweather,
Henry, Rees, unknown staff, and Nurse Walters for their deliberate
indifference in failing to get Plaintiff medical care for his injuries, in
violation of the Eighth Amendment;

Count 4: Against Defendants Johnson, Bennett, Lloyd, Ealey, Starkweather,
Henry, Rees and unknown staff for beating Plaintiff and/or transferring
him to Tamms in retaliation for “complaining,” and in an effort to
stop Plaintiff from complaining about the beating, all in violation of
the First Amendment;
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Count 5:

Against “two Tamms Sort Drivers” who transported Plaintiff to
Tamms, and those who first encountered Plaintiff upon his arrival—
the “Tamms Tac Team,” Nurse Dunn, Nurse Hamby, and two
unidentified officers—for their deliberate indifference to Plaintiff’s
serious medical needs, in violation of the Eighth Amendment; and

Count 6:

Against C/O Phemister for denying Plaintiff food and drink on
multiple occasions in retaliation for the events at Menard and for
complaining about his treatment, in violation of the First Amendment.

Wilborn v Shicker, et al., No. 13-cv-00176-MJR
(Pauper status granted; case pending)
Count 7:

Against, the Medical Director for the Illinois Department of
Corrections, Louis Shicker, and Tamms Medical Director Dr. Powers,
and Health Care Unit Administrator Vinyard, for their deliberate
indifference in violation of the Eighth Amendment when they denied
Plaintiff follow-up care recommended by an outside physician.

Wilborn v. Vanhoorebeke, No. 13-cv-00177-GPM
(Voluntarily dismissed April 4, 2013)
Count 8:

Against Property Officer Vanhoorebeke for taking Plaintiff’s eye
glasses and a manuscript from Plaintiff’s property that was transferred
from Menard to Tamms, in retaliation for the altercation with the
officials at Menard, in violation of the Eighth Amendment.

Wilborn v. Phelps, No. 13-cv-00178-MJR
(Voluntarily dismissed April 2, 2013)
Count 9:

Against Correctional Officer Phelps for ransacking Plaintiff’s cell,
handcuffing Plaintiff too tightly, and refusing Plaintiff reading
materials—all in retaliation for the altercation with guards at Menard,
in violation of the Eighth Amendment.
2. Motion for Reconsideration

The Order directing the severance of Counts 7-9 from this action was entered on
February 20, 2013 (Doc. 23). Just eight days later, on February 28, 2013, Plaintiff filed his
“Motion to Amend Exhibits and Motion to Reconsider Counts 7-9 Remain in the Above Case
No.” [sic] (Doc. 24). On April 5, 2013, Plaintiff filed a supplemental brief of sorts, reiterating

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his position that all nine claims are interrelated and should not be severed (Doc. 35).2
Technically, a Amotion to reconsider@ does not exist under the Federal Rules of Civil
Procedure. Rule 59(e) provides for motions to alter or amend judgment, and Rule 60(b) permits
motions for relief from a final judgment or order, but both of those mechanisms are inapplicable
to interlocutory orders, such as a severance order. However, the court maintains broad authority
to reconsider an interlocutory order. Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics
Dep’t, 510 F.3d 681, 694 n. 5 (7th Cir. 2007).
“A district court may reconsider a prior decision when there has been a significant change
in the law or facts since the parties presented the issue to the court, when the court
misunderstands a party’s arguments, or when the court overreaches by deciding an issue not
properly before it.” United States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008); see also
Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir. 2006) (“The authority of a
district judge to reconsider a previous ruling in the same litigation ... is governed by the law of
the case, which authorizes such reconsideration if there is a compelling reason, such as a change
in, or clarification of, law that makes clear that the earlier ruling was erroneous.”).
Plaintiff Wilborn is essentially asserting that the Court has misunderstood his allegations.
He contends that all of the harm that befell him—at Menard, during transport, and at Tamms—
was causally connected, motivated by retaliation and loyalty among prison officials. He also
argues that all claims are causally connected, in that had he not initially been beaten at Menard,
he would not have needed medical treatment, nor would he have been transferred, nor would
there have been anything to motivate the retaliation he incurred at Tamms.
“Unrelated claims against different defendants belong in different suits[.]” George v.
2

Although Plaintiff has voluntarily dismissed the cases presenting Counts 8 and 9, for purposes
of analysis, the Court will analyze the severance issue with respect to all nine of the claims.
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Smith, 507 F.3d 605, 607 (7th Cir. 2007). Otherwise, prisoners easily could sidestep the
requirements of the Prison Litigation Reform Act of 1995 (“PLRA”), Pub.L. No. 104–134, 110
Stat. 1321 (1996), in particular the PLRA’s provisions regarding filing fees. See id. Rule 18
provides, in relevant part, that “[a] party asserting a claim, counterclaim, crossclaim, or thirdparty claim may join, as independent or alternative claims, as many claims as it has against an
opposing party.” Fed.R.Civ.P. 18(a). Accordingly, “multiple claims against a single party are
fine, but Claim A against Defendant 1 should not be joined with unrelated Claim B against
Defendant 2.” George, 507 F.3d at 607.
The Court has broad discretion to determine when joinder is appropriate. See Thompson
v. Boggs, 33 F.3d 847, 858 (7th Cir.1994). See also 7 Charles Alan Wright, Arthur R. Miller,
Mary Kay Kane & Richard L. Marcus, Federal Practice and Procedure § 1653 (3d ed. 1998 &
Supp. 2011) (the discretion district courts have as to joinder “promote[s] judicial economy by
permitting all reasonably related claims for relief by or against different parties to be tried in a
single proceeding under the provisions of Rule 20”) (collecting cases).
From Plaintiff Wilburn’s perspective, all nine of his claims stem from the attack at
Menard that is the subject of Count 1, which led to his injuries, inadequate medical care, his
transfer and retribution upon arrival at Tamms (Counts 1-6) and continuing for more than a year
thereafter. For example, Count 7 is captioned, “Continuing Violation Deliberate Indifference
Follow Up Treatment” [sic].
This Court remains convinced that Counts 1-6 are not reasonably related to Counts 7-9.
As previously explained, Counts 1-6 are factually and chronologically intertwined, and the legal
issues are related. However, the thread linking those claims —whether it be chronology or
loyalty among prison officials—becomes too thin and attenuated to reasonably warrant

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consideration of Counts 7-9 in the same action as Counts 1-6.
Aside from the origin of the physical injuries for which Plaintiff sought follow-up care,
there is no link between Count 7 and Counts 1-6. In Count 7, Plaintiff claims Medical Director
Louis Shicker, Dr. Powers and Health Care Unit Administrator Vinyard all denied a
recommended orthopedic consultation for budgetary reasons, and he otherwise takes issue with
various treatment decisions made through at least June 2012. These issues can be decided
independently from Counts 1-6.
Count 8 alleges that when his personal property arrived from Menard, Tamms Property
Officer Vanhoorebeke intentionally removed Plaintiff’s glasses and a manuscript from the
shipment, “as a token of get back.” According to the complaint, Vanhoorebeke said he would
continue to interfere with Plaintiff’s mail and property “for [Vanhoorebeke’s] friends at
Menard.” Again, whether Vanhoorebeke retaliated against Plaintiff for complaining about the
Menard attack can be determined independently from Counts 1-6, and separately from Count 7.
Count 9 alleges that, on multiple occasions, Tamms correctional officer Phelps ransacked
Plaintiff’s cell, denied him reading materials and otherwise mistreated Plaintiff in retaliation for
grievances and complaining about the attack at Menard. This claim can also be determined
independently from all other claims.
For these reasons, the Court does not find that there was any misunderstanding of
Plaintiff’s claims, or any other basis for altering the decision to sever Counts 7-9 into separate
actions. Therefore, Plaintiff Wilborn’s motion for reconsideration of the severance of claims
(Docs. 24, 35) shall be denied.
3. Pauper Status and Service of Process
Plaintiff Wilborn paid the $350.00 filing fee to commence this action. Therefore, on

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March 20, 2013, this Court directed Plaintiff to show cause by April 19, 2013, why his motion
for service of process at government expense (Doc. 25) should not be denied (Doc. 33). After a
series of procedural missteps (which will be overlooked in light of Plaintiff’s diligence and pro
se status), Plaintiff’s “Motion to Re-File the Documents of Service at Government Expense with
Application of Forma Pauperis” [sic] (Doc. 32), and “Motion to Show Cause and Status of Prior
Motions” (Doc. 37) are before the Court. These documents are construed as satisfying the order
to show cause, and as a motion for leave to proceed as a pauper. If pauper status is granted, then
service would be at government expense, pursuant to 28 U.S.C. § 1915(d).
A review of Wilborn’s prison trust fund account statement reveals that when Plaintiff
transferred from Tamms to Pontiac in December 2012, he had over $700.00 in his account, but
by February 25, 2013, his account had been depleted down to only $49.02. Since that time,
Wilborn has been granted pauper status in Wilborn v Shicker, et al., No. 13-cv-00176-MJR, one
of the cases severed from this action. Therefore, Wilborn has established that he qualifies for
pauper status, which at this juncture would entitle him to service of process at government
expense.
4. Pending Motions
Having completed the required threshold review and resolved the service issue, Plaintiff’s
most recent motion for action on all pending motions (Doc. 38) shall be denied as moot.
Plaintiff’s motion regarding access to the prison law library (Doc. 36) shall be referred to
United States Magistrate Judge Philip M. Frazier for determination.
5. Disposition
IT IS HEREBY ORDERED that, for the reasons stated, Plaintiff Wilborn’s motion for
reconsideration of the severance of Count 7-9 from this action (Docs. 24, 35) is DENIED.

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The Clerk of Court is DIRECTED to have the record reflect that the Court’s Order to
Show Cause (Doc. 33) has been SATISFIED by Plaintiff’s response (Doc. 37).
IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, Plaintiff Wilborn’s
motions for pauper status and for service of summons and the complaint at government expense
(Docs. 25, 32) are GRANTED. Consequently, Plaintiff’s motion for action on all pending
motions (Doc. 38) is DENIED AS MOOT.
The Clerk of Court shall prepare for Defendants DAVIS EALEY, WILLIAM
JOHNSON, BENNETT, LLOYD, MR. HENRY, OFFICER STARKWEATHER, A.
WALTER, REES, SHELBY DUNN, LAKEISHA HAMBY and CHRISTOPHER
PHEMISTER: (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.
Service shall not be made on the unknown Defendants—SORT TEAM DRIVERS,
TAC TEAM and OTHER UNKNOWN STAFF—until such time as Plaintiff has identified
them by name in a properly filed amended complaint. Plaintiff is ADVISED that it is his
responsibility to provide the Court with the names and service addresses for these individuals.
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

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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 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, which shall include a determination of
the pending motion regarding Plaintiff’s access to the prison law library (Doc. 36).
Further, this entire matter shall be REFERRED to United States Magistrate Judge Philp
M. Frazier 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 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

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leave to proceed as a pauper, 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).
IT IS SO ORDERED.
Dated: June 13, 2013
s/J. Phil Gilbert
J. PHIL GILBERT
UNITED STATES DISTRICT JUDGE

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