Wilborn v. Medlin

Filing 1

MEMORANDUM AND ORDER severing case number 13-70-JPG-PMF. Signed by Judge J. Phil Gilbert on 11/19/2013. (tjk)

Case 3:13-cv-00070-JPG-PMF Document 94 Filed 11/19/13 Page 1 of 4 Page ID #394

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH WILBORN,
Plaintiff,
v.

Case No. 13-cv-70-JPG-PMF

DAVID EALEY, WILLIAM JOHNSON, ANDREW
BENNETT, JAMES LLOYD, SEAN HENRY, SEAN
STARKWEATHER, ANGELA WALTER, WILLIAM
REES, SORT TEAM DRIVERS, TAC TEAM,
SHELBY DUNN, LAKEISHA HAMBY,
CHRISTOPHER PHEMISTER, OTHER UNKNOWN
STAFF, RICKY DAUGHERTY, DOUGLAS MASON,
DEREK RICHARDSON, CHRISTOPHER
WEHRENBERG, SHANE OSMAN, JEFF
PETERSON, BRENT HUNSAKER, RAYMOND
MCCANN, ALBERT WEHRHEIM, DANIEL
JEFFORDS, COLE CARTER, CHAD PARRISH,
JOHN WOLFE, BRIAN DOWDY, CYNTHIA
JOHNSON, CLAUDIA LESLIE and CAROL
GEORGE, CONNIE BARBATTI,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
90) of Magistrate Judge Philip M. Frazier recommending disposition of certain new claims pled in
the Amended Complaint (Doc. 88) pursuant to 28 U.S.C. § 1915A. Magistrate Judge Frazier
recommends that the Court allow a new claim and new parties to be added to this case, sever three
new claims into three new cases, and dismiss without prejudice eight new claims.
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are made.
Id. “If no objection or only partial objection is made, the district court judge reviews those

Case 3:13-cv-00070-JPG-PMF Document 94 Filed 11/19/13 Page 2 of 4 Page ID #395

unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999).
The Court has received no objection to the Report. The Court has reviewed the entire file
and finds that the Report is not clearly erroneous. Accordingly, the Court hereby:


ADOPTS the Report in its entirety (Doc. 90), including the renumbering and defining of
the claims in the Amended Complaint;



DIRECTS that Count 10, a state law claim for battery, shall proceed against defendants
David Ealey, William Johnson, Andrew Bennett, James Lloyd, Sean Henry and Sean
Starkweather. Service of process on these defendants pursuant to Federal Rule of Civil
Procedure 4 has been waived (Docs. 74-78 & 85), but the Court reminds Wilborn of his
obligation under Federal Rule of Civil Procedure 5(a)(1) to serve these defendants with his
amended pleading. There is no certificate of service attached to the amended complaint,
and the defendants have not appeared so they have not been served by the Court’s
electronic filing system. The obligation to file a responsive pleading does not arise until
the pleading is served;



DIRECTS that defendants Ricky Daugherty, Douglas Mason, Derek Richardson,
Christopher Wehrenberg and Shane Osman be added to Count 5;
o The Clerk of Court shall prepare for Defendants RICKY DAUGHERTY,
DOUGLAS MASON, DEREK RICHARDSON, CHRISTOPHER
WEHRENBERG and SHANE OSMAN: (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;
o 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;
o 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
2

Case 3:13-cv-00070-JPG-PMF Document 94 Filed 11/19/13 Page 3 of 4 Page ID #396

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;

o 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);


SEVERS from the instant action and from each other:
Count 11 (alleging a First Amended violation by defendant James Starkweather on
October 27, 2011);
Count 12 (alleging a claim for excessive use of force by defendants Christopher
Phemister, Kevin Bakos, Jamie Sisk, Christopher Wehrenberg and Cory
Fuqua on October 27, 2011); and
Count 13 (alleging deliberate indifference to serious medical needs by Rhonna
Medlin on October 27, 2011);
A separate case shall be opened for each of the three severed claims; each case
bearing a separate case number. However, Plaintiff shall have an opportunity to
voluntarily dismiss any or all of the newly severed cases if he does not wish to
proceed or incur the additional filing fee that must be assessed for each case.
o In each new case, the Clerk is DIRECTED to file the following documents:
1. This Memorandum and Order; and
2. The Amended Complaint (Doc. 88).
o Plaintiff is ADVISED that if, for any reason, he does not wish to proceed with any
or all of the newly-opened cases, he must notify the Court in writing on or before
December 27, 2013. Service will not be ordered on the defendants in the severed
cases until after the deadline for Plaintiff’s response. Unless Plaintiff notifies the
Court that he does not wish to pursue the newly opened actions, Plaintiff will be
responsible for an additional filing fee for each new case. If plaintiff wants to
proceed in forma pauperis in any of the new cases, he must file a new, separate
motion in that case.



DISMISSES the following claims without prejudice:
Count 14: Retaliation/Failure to Train and Supervise on October 29, 2012;
Count 15: Retaliation/Failure to Train and Supervise on November 2, 2012;

3

Case 3:13-cv-00070-JPG-PMF Document 94 Filed 11/19/13 Page 4 of 4 Page ID #397

Count 16: Retaliation/Failure to Train and Supervise/Failure to Intervene on
November 4, 2012;
Count 17: Retaliation/Failure to Train and Supervise on November 5, 2012;
Count 18: Retaliation/Failure to Train and Supervise on November 6, 2012;
Count 19: Retaliation/Failure to Train and Supervise on November 13, 2012;
Count 20: Retaliation/Failure to Train and Supervise on November 16, 2012;
Count 21: Retaliation/Failure to Train and Supervise on December 1, 2012;



TERMINATES defendants James Starkweather, Jamie Sisk, Kevin Bakos, Cory Fuqua, Jeff
Peterson, Brent Hunsaker, Raymond McCann, Albert Wehrheim, Daniel Jeffords, Cole Carter,
Chad Parrish, John Wolfe, Brian Dowdy, Cynthia Johnson, Claudia Leslie, Rhonna Medlin,
Carol George, and Connie Barbatti as defendants in the instant action; and



DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.

IT IS SO ORDERED.
DATED: November 19, 2013
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

4