Malone v. Davis et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, granting 3 MOTION for Leave to Proceed in forma pauperis filed by William A Malone.IT IS HEREBY ORDERED that the Clerk of Court shall prepare for Defendants DAVIS and WHITEHEAD: (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 3/25/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM A. MALONE, # B-52858,
Plaintiff,
vs.
RANDY DAVIS
and C/O WHITEHEAD,
Defendants.

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Case No. 13-cv-126-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is before the Court for case management. On February 6, 2013, following the
Memorandum and Order entered in Malone v. Leszcwski, et al., Case No. 13-cv-38-JPG (Doc. 1
in the instant case), this matter was severed from the original case. Plaintiff was directed to
notify the Court by March 13, 2013, if he did not wish to proceed with this severed claim for
retaliation against Plaintiff by denying him bed and wheelchair cushions, in order to avoid
incurring an additional $350 filing fee in this new case. That deadline has now passed, and
Plaintiff has not notified the Court of any intent to dismiss the instant action. Accordingly,
service shall be ordered on the Defendants in this case.
Also before the Court is Plaintiff’s motion for leave to proceed in forma pauperis (“IFP”)
(Doc. 3). Plaintiff has submitted an affidavit stating that in the year preceding the date he filed
the original action, he had no income other than $10/month from his prison job, and had no
assets or cash on hand. However, he has not tendered a certified copy of his inmate trust fund
account statement, to cover the six-month period immediately preceding the date this case was
severed from Case No. 13-cv-38-JPG. The Clerk has requested the required statements from the
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Trust Fund Officer at Pinckneyville Correctional Center, for the six-month period prior to the
date this case was severed from the original action (Doc. 5). Following the receipt of that
information, an order shall issue for the payment of the initial partial filing fee as outlined in 28
U.S.C. § 1915(b)(1). The order shall also direct subsequent payments to be made pursuant to
§ 1915 until the filing fee is paid in full. Based on Plaintiff’s affidavit of indigence, the Court
concludes that he is unable to pay in full the $350.00 filing fee in this case at this time, and
therefore it is appropriate to permit him to proceed IFP in this case without full prepayment of
the fee.
Accordingly, Plaintiff’s motion to proceed IFP in this case (Doc. 3) is GRANTED. The
Clerk of Court is directed to send a copy of this Order to Plaintiff and to the Trust Fund Officer
at Pinckneyville Correctional Center.
IT IS HEREBY ORDERED that the Clerk of Court shall prepare for Defendants
DAVIS and WHITEHEAD: (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 (Doc. 2), the Memorandum and Order at Doc. 1, 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

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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.
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.
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 any
grant of an application to proceed in forma pauperis. 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,

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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: March 25, 2013
_s/ J. PHIL GILBERT
U.S. District Judge

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