Baird v. Hodge, et al

Filing 3

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. The Clerk is DIRECTED to add WARDEN HODGE as a Defendant in this action. Defendants LAWRENCE CORRECTIONAL CENTER, and the "Entire inmate population in custody" are DISMISSED f rom this action with prejudice. Plaintiff is HEREBY ORDERED to file a complaint with the Court, within 21 days. Plaintiff is FURTHER ORDERED to either pay the $350 filing fee for this action, or submit a motion for leave to proceed IFP, with in the same deadline. Failure to timely file a complaint, or to comply with the filing fee requirements herein, shall result in the dismissal of this action without prejudice. The Clerk of Court is DIRECTED to complete, on Plaintiffs behalf, a summo ns and form USM-285 for service of process on Defendant HODGE. Pursuant to Federal Rule of Civil Procedure 4, within 14 days of the date of this Order, the United States Marshals Service SHALL personally serve upon Defendant HODGE. (Action due by 5/13/2013). Signed by Judge Michael J. Reagan on 4/22/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIS BAIRD, # K-81582,

)
)
Plaintiff,
)
)
vs.
)
)
LAWRENCE CORRECTIONAL CENTER, )
Entire inmate population in custody
)
of Warden Hodge,
)
)
Defendants.
)

Case No. 13-cv-376-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff, currently incarcerated at Lawrence Correctional Center (“Lawrence”),
comes now before the Court on a motion for temporary restraining order (“TRO”) or
preliminary injunction, and motion for emergency hearing (Doc. 1). Plaintiff has not filed a
complaint. He also has not filed a motion for leave to proceed in forma pauperis (“IFP”) or paid
the filing fee for this action. Plaintiff is serving a 25 year sentence for home invasion, and a
three year sentence for aggravated criminal sexual abuse. His projected release date is
approximately five months away (Doc. 1, p. 4).
In his motion for TRO, Plaintiff claims that he has made numerous requests to be
placed in protective custody, all of which have been refused (Doc. 1, pp. 2-3, 5-6). Plaintiff
alleges that he is in danger because fellow Lawrence inmates have become aware that he was
formerly employed as an undercover police officer. This fact became known in Lawrence as of
the date Plaintiff was transferred there (July 2012), because two other fellow transferred inmates
had been told about it by an official at Hill Correctional Center (“Hill”). Both Plaintiff and the

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other two inmates had been confined at Hill before the transfer. Upon their arrival at Lawrence,
Plaintiff was housed in the same unit with these two inmates, and they confronted Plaintiff with
their knowledge of his past (Doc. 1, pp. 1-2).
Starting in July 2012, Plaintiff filed several emergency grievances to Warden
Hodge requesting protective custody or some other assistance (Doc. 1, p. 2). He also sought help
from internal affairs and from the prison social worker. His requests fell on deaf ears. Plaintiff
was attacked and beaten by his cellmate on March 20, 2013 (Doc. 1, pp. 2-3). After this
incident, Plaintiff was sent to segregation, but was due to be released back into the general
population on April 20, 2013 (Doc. 1, p. 7). It appears that Plaintiff had been in disciplinary
segregation; he also states he “had fifteen days added to his sentence” in connection with this
attack (Doc. 1, p. 4).
Further, Plaintiff received a threatening letter on April 5, 2013, from a different
inmate. Included with the inmate’s letter were “private, privileged legal documents” belonging
to Plaintiff, which identified him as a police officer who did undercover drug work. This threat,
and the dispersal of Plaintiff’s legal documentation to fellow inmates, has placed him in fear for
his life. He has made further attempts to request protective custody, with no response as of the
date he submitted his motions to the Court.
As relief, Plaintiff seeks an order from this Court requiring that he be kept
“segregated from the entire inmate population at Lawrence” (Doc. 1, p. 6).
Plaintiff has not properly commenced this action by filing a complaint.
According to the Federal Rules of Civil Procedure, “[a] civil action is commenced by filing a
complaint with the court.” FED. R. CIV. P. 3. Due to the nature of Plaintiff’s allegations, and out
of an abundance of caution, the Court shall proceed to scheduls Plaintiff’s motion for TRO or

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preliminary injunction for hearing. However, Plaintiff’s motions do not suffice as a complaint.
Accordingly, in order to proceed with this action, Plaintiff shall be required to submit a
complaint, as ordered below. He is encouraged to use the Court’s civil rights complaint form,
which has been mailed to him by the Clerk of Court.
Filing Fee
Plaintiff has also failed to pay the necessary $350 filing fee for commencing this
action, nor has he submitted a motion for leave to proceed in forma pauperis (“IFP”). Pursuant
to 28 U.S.C. § 1915, a federal court may permit a prisoner who is indigent to bring a “suit, action
or proceeding, civil or criminal,” without prepayment of fees upon presentation of an affidavit
stating the prisoner’s assets together with “the nature of the action . . . and affiant’s belief that the
person is entitled to redress.” 28 U.S.C. § 1915(a)(1). In the case of civil actions, a prisoner’s
affidavit of indigence must be accompanied by “a certified copy of the trust fund account
statement (or institutional equivalent) for the prisoner for the 6-month period immediately
preceding the filing of the complaint . . . , obtained from the appropriate official of each prison at
which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2). Plaintiff is required to pay the
$350 filing fee, or if he is unable to pre-pay this amount, he must submit a motion for leave to
proceed IFP, as directed below. This form has also been mailed to him (Doc. 2).
Defendants
The Lawrence Correctional Center, which is a division of the Illinois Department
of Corrections, is not a “person” within the meaning of the Civil Rights Act, and is not subject to
a § 1983 suit. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore,
Defendant Lawrence Correctional Center shall be dismissed from the action with prejudice.
Further, the “Entire inmate population” cannot be named as Defendants in a civil

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rights action. A plaintiff cannot proceed with a federal claim under § 1983 against a non-state
actor. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); Gayman v. Principal Fin.
Servs., Inc., 311 F.3d 851, 852-53 (7th Cir. 2003). Prison inmates are not state actors, therefore,
they shall also be dismissed from this action.
Because Plaintiff is seeking injunctive relief, Warden Hodge is an appropriate
Defendant herein. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (proper
defendant in a claim for injunctive relief is the government official responsible for ensuring any
injunctive relief is carried out). In order for this matter to proceed with service on an individual
Defendant, the Court shall add Warden Hodge as a party. See FED. R. CIV. P. 21; FED. R. CIV. P.
17(d).
Disposition
The Clerk is DIRECTED to add WARDEN HODGE as a Defendant in this
action. Defendants LAWRENCE CORRECTIONAL CENTER, and the “Entire inmate
population in custody” are DISMISSED from this action with prejudice.
Plaintiff is HEREBY ORDERED to file a complaint with the Court, within 21
days (on or before May 13, 2013). Plaintiff is ADVISED not to include the dismissed
Defendants as parties to this action. Plaintiff must serve a copy of the complaint on Defendant
Hodge. Plaintiff is FURTHER ORDERED to either pay the $350 filing fee for this action, or
submit a motion for leave to proceed IFP, within the same deadline. Failure to timely file a
complaint, or to comply with the filing fee requirements herein, shall result in the dismissal of
this action without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall take appropriate
steps in coordination with the U.S. Marshals Service, to effect formal, PERSONAL SERVICE

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of summons, Plaintiff’s motions at Doc. 1, and this order upon Defendant Hodge at his work
address, as provided by Plaintiff. The Court will not require Defendant to pay the full costs of
formal service, as the Court is ordering personal service to expedite the resolution of Plaintiff’s
motion for TRO or preliminary injunction (Doc. 1).
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c), Plaintiff s motion
for TRO or preliminary injunction (Doc. 1) is hereby REFERRED to United States Magistrate
Judge Stephen C. Williams for an evidentiary hearing and issuance of a report and
recommendation. The period for filing any objections to Judge Williams’ report and
recommendation shall not exceed 14 days from the date of the report. Judge Williams shall set
an evidentiary hearing as soon as practicable, in light of the time necessary to effect service of
summons and for receipt of any response by Defendant to the motion for injunctive relief. Any
motions filed after the date of this Order that relate to the request for injunctive relief are also
hereby REFERRED to Judge Williams.
The Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons
and form USM-285 for service of process on Defendant HODGE. The Clerk shall issue the
completed summons, and prepare a service packet for the Defendant consisting of: the completed
summons, the completed form USM-285, a copy of the motion for TRO and preliminary
injunction (Doc. 1), and this Memorandum and Order. The Clerk shall deliver the service packet
for the Defendant to the United States Marshal Service for personal service on the Defendant.
Pursuant to Federal Rule of Civil Procedure 4, within 14 days of the date of this
Order, the United States Marshals Service SHALL personally serve upon Defendant HODGE,
the service packet containing the summons, form USM-285, a copy of the motion for TRO and
preliminary injunction (Doc. 1), and this Memorandum and Order. All costs of service shall be

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advanced by the United States, and the Clerk shall provide all necessary materials and copies to
the United States Marshals Service.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance
is entered), a copy of every further pleading or other document submitted for consideration by
the Court, including a copy of the complaint. Plaintiff shall include with the original paper to be
filed a certificate stating the date on which a true and correct copy of any document was served
on Defendant 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.
Defendant is ORDERED to timely file an appropriate responsive pleading to the
complaint, once it has been served on him, 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 Williams for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to United States Magistrate
Judge Williams 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.
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

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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: April 22, 2013

_s/ MICHAEL J. REAGAN
United States District Judge

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