Winter v. Duncan

Filing 22

IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to alter the record to reflect that this action is brought pursuant to 42 U.S.C. § 1983, and is not as a petition for writ of habeas corpus. Accordingly, the party designations shall be changed to plaintiff and defendant. Also, by random draw, this case shall be REASSIGNED to the docket of a district judge who is designated to preside over such cases. See attached order for details. Signed by Judge David R. Herndon on 2/4/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LESTER WINTER, JR.,
No. M28567,
Petitioner/Plaintiff,
vs.
WARDEN DUNCAN,
Respondent/Defendant.

)
)
)
)
)
)
)
)
)
)

CASE NO. 14-cv-00762-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
Lester Winter, Jr., is an inmate at Lawrence Correctional Center.

His

“Amended Complaint” (Doc. 16) is before the Court for preliminary review.
The public records of the Illinois Department of Corrections indicate that
Winter was convicted of aggravated criminal sexual abuse of a minor less than 13
years of age. His projected parole date was July 9, 2014, but because he did not
have a satisfactory residence, he was not released from prison.
Winter’s initial pleading (Doc. 1) bore no formal caption.

The pleading

referenced the First Amendment, the Americans with Disabilities Act, and the
Equal Protection and Due Process Clauses of the Fourteenth Amendment—all
suggesting civil rights violations by officials in connection with the conditions of
confinement in prison, and the failure to find Winter a place to live. However,
Winter sought placement in a halfway house. Unable to discern the nature of the
case, the complaint was dismissed without prejudice (Doc. 7).

The dismissal order explained the differences between two possible avenues
for relief: (1) a civil rights action; or (2) a petition for writ of habeas corpus. The
Court gave Winter an opportunity to amend his pleading, and indicated that the
appropriate filing fee would be assessed once it was clear whether this was a civil
rights or habeas action.

The Amended Complaint (Doc. 16) is somewhat

ambiguous, but for the reasons that follow, the Court concludes that it must be
analyzed as a civil rights case.
Notices and Motions
In advance of delving into the Amended Complaint, a variety of notices and
motions filed by Winter will be addressed—some of which are tangentially related
to the assessment of the Amended Complaint.
Counsel
Winter has filed two motions for counsel (Docs. 13, 15). He states that he
has an unspecified learning disability, although he completed high school. He
explains that he does not know much about the law, his access to the law library
is limited, and he does not feel that he will be able to adequately represent
himself.

With only approximately $150 in his prison trust fund account, he

obviously cannot afford to retain counsel.
There is no constitutional or statutory right to counsel in federal civil cases.
Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v.
Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Nevertheless, the district court
has discretion under 28 U.S.C. § 1915(e)(1) to recruit counsel for an indigent

litigant. Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866–67 (7th Cir.
2013).
When a pro se litigant submits a request for assistance of counsel, the
Court must first consider whether the indigent plaintiff has made reasonable
attempts to secure counsel on his own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th
Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007)). If so, the
Court must examine “whether the difficulty of the case—factually and legally—
exceeds the particular plaintiff’s capacity as a layperson to coherently present it.”
Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The question ... is
whether the plaintiff appears competent to litigate his own claims, given their
degree of difficulty, and this includes the tasks that normally attend litigation:
evidence gathering, preparing and responding to motions and other court filings,
and trial.’ Pruitt, 503 F.3d at 655. The Court also considers such factors as the
plaintiff’s

“literacy,

communication

skills,

education

level,

and

litigation

experience.” Id.
Although Winter cannot afford to retain counsel, he has not made any effort
to get an attorney to take his case on a contingency basis, or to have a legal
services group take up his cause. Denial of his motions on that basis alone is
justified. The Court is definitely concerned about Winter’s intellect and ability to
frame his cause of action, but his pleadings to date and choices made do not
convince the Court that his issues are factually or legally more than he can
handle, particularly since pro se pleadings are construed liberally and pro se

litigants are not held to the same standards as trained legal counsel. 1

More

specifically, Winter appears to be challenging a very narrow aspect of what has
been called the “turnaround policy.”

Compare Murdock v. Walker, 2014 WL

916992, *7 (N.D. Ill. 2014). Therefore, Winter’s motions for counsel (Docs. 13,
15) will be denied without prejudice. The Court will remain open to appointing
counsel.
Miscellaneous
Two “motions for notification” (Docs. 11, 14) were filed in advance of the
Amended Complaint. The first document (Doc. 11) is not signed, so it will be
stricken.

See FED.R.CIV.P. 11(a) (unsigned motions must be stricken).

The

second document (Doc. 14) is construed as a motion for leave to file the amended
pleading out of time, due a delay in the prison business office transmitting the
pleading to the Court before the prescribed deadline. A review of the Amended
Complaint reveals that it was signed before the deadline for amendment and
received by the Court six days after the deadline (with an intervening three-day
holiday weekend when mail would not have been delivered to the Court). For
good cause shown, and because it appears that the Amended Complaint was
turned over for transmittal to the Court before the deadline, Plaintiff’s motion
(Doc. 14) will be granted.

Accordingly, the Amended Complaint (Doc. 16) is

considered to have been timely filed.

1

Choosing between pursuing a civil rights action and a habeas corpus petition is
often a close call (as will be discussed below). The Court cannot say that Winter
has chosen the wrong avenue for relief.

Another “motion for notification” (Doc. 19) was filed after the Amended
Complaint.

Winter cites the Civil Rights Act of 1964 (Pub.L. 88-352, 78 Stat.

241(1964)), pertaining to discrimination based on race, color, religion, gender or
national origin.

The Court surmises that he meant to cite 42 U.S.C. § 1983

(Pub.L. 96-170, 93 Stat. 1284 (1979)).

In any event, he asserts that his

constitutional rights are being violated relative to (1) his being held past his outdate, and (2) the conditions of his confinement.

Plaintiff does not request

anything specific in this “motion to notify,” so the motion (Doc. 19) will be denied
as moot.
A “Petition against Field Service, Resource Placement” (Doc. 20) confirms
that Winter remains in prison where, due to discrimination, he is not being given
medical treatment for his learning disorder. Because it is unsigned, the “petition”
(Doc. 20) must be stricken. See FED.R.CIV.P. 11(A) (unsigned motions must be
stricken).
A month after the Amended Complaint was filed, Winter filed an “Amended
Motion for False Imprisonment” (Doc. 21).

Assertions are made that officials

have been negligent and have violated Winter’s constitutional rights by holding
him in prison without his consent.

Insofar as Winter may have intended to

further amend the Amended Complaint, amendment by interlineation is not
permitted (see Local Rule 15.1). An amended complaint must contain all claims
a plaintiff wants to pursue against all defendants. Winter’s motion (Doc. 21) will,

therefore, be denied, leaving the Amended Complaint (Doc. 21) as the controlling
pleading.
The Amended Complaint
The Amended Complaint (Doc. 16) specifies that it is brought pursuant to
42 U.S.C. § 1983 to seek redress for constitutional violations related to Winter’s
continued incarceration at Lawrence Correctional Center (“Lawrence”) long past
his September 2014 parole date. According to the Amended Complaint, halfway
housing is supposed to be provided to inmates who have no other approved
placed to reside upon their release from prison on parole. See 730 ILCS 5/3-3-2
and 5/3-14-2 (splitting duties related to the parole decision itself, and supervision
of a parolee, between the Prisoner Review Board and Department of Corrections).
No such housing arrangement has been made for Winter.
defendants 2—all

Illinois

Department

of

Corrections

The five named

(IDOC)

officials—are

described as being individuals acting under color of law, which is prescribed in
Section 1983 as a requirement for liability.
Defendant Salvador Godinez is the director of the IDOC, and defendant
Donald Gaetz is the deputy director overseeing the institutions within the
southern region, including Lawrence.

2

Lawrence Correctional Center and the Illinois Department of Corrections
(“IDOC”), which were listed as parties in the original pleading (Doc. 1), are not
included as parties in the Amended Complaint (Doc. 16), and are therefore
deemed voluntarily dismissed. See Fed.R.Civ.P. 10(a), 15(a), 41(a).

Defendant Stephen Duncan is the warden of Lawrence.

Duncan is

described as being legally responsible for the operation of the prison and the
welfare of inmates housed there.
According to the Amended Complaint, the Clinical Services Department at
the prison, headed by defendant Randy Stevenson, is supposed to keep an up-todate list of available housing sites. Clinical Services also “handles the leg work” to
ensure a halfway house site is approved prior to an inmate’s parole date. Clinical
Services does not provide the list of possible cites to the inmate, so an inmate
cannot take action to improve the chances that a site will be secured, except that
an inmate may stay with a family member, if approved by the Illinois Department
of Corrections (“IDOC”) Prisoner Review Board.
Living with a relative is the first option explored. Six months prior to an
inmate’s parole date, the inmate’s counselor is supposed to submit the proposed
family site so that a Parole agent can inspect and approve the site. If disapproved,
the inmate then pursues the halfway house option.

Defendant Williams is

Winter’s counselor.
Winter asserts that his mother’s residence was inspected and disapproved
due to a “misunderstanding,” but he otherwise qualifies for placement in a
halfway house.

Winter subsequently submitted a request to Clinical Services

Director Randy Stevenson and Counselor Williams for placement in a halfway
house, all to no avail.

The Prisoner Review Board stated that Winter’s situation would be looked
into further, but he remains incarcerated. Administrative grievances have gone
unanswered. An “emergency grievance” was deemed by Warden Duncan not to be
an emergency, and Winter was instructed to submit the grievance through his
counselor. A letter to Deputy Director Gaetz went unanswered. Winter states that
he can send his rejected emergency grievance to the Administrative Review Board
and, ultimately, to IDOC Director Godinez. Whether he has done so is unclear.
Winter asserts that, if the defendants would only do their jobs or allow him
to line up a halfway house, he could be released from prison, as he should have
been on his scheduled September 7, 2014, parole date.
Based on the allegations in the complaint, the Court finds it convenient to
divide the pro se action into the following counts, which generally mirror the
claims enumerated in the Amended Complaint. The parties and the Court will
use these designations in all future pleadings and orders, unless otherwise
directed by a judicial officer of this Court. The designation of these counts does
not constitute an opinion as to their merit.
Count 1: By failing to release Winter on his scheduled parole
date, Defendants have subjected him to cruel and
unusual punishment in violation of the Eighth
Amendment;
Count 2: By failing to assist in lining up a housing site for Winter,
Defendants have denied him procedural due process, in
violation of the Due Process Clause of the Fourteenth
Amendment;

Count 3: Defendants have acted negligently by failing to assist in
lining up a housing site for Winter, in violation of
Illinois common law;
Count 4: By not lining up a housing site for Winter, and by not
releasing him on his scheduled parole date, Defendants
have subjected him to false imprisonment, in violation
of Illinois common law; and
Count 5: Defendants have intentionally inflicted emotional harm
upon Winter by failing to assist in lining up a housing
site, and by not releasing him on his scheduled parole
date, in violation of Illinois common law.
Winter seeks declaratory judgment, compensatory and punitive damages,
and a permanent injunction ordering the defendants to provide halfway house
placement services, including allowing a list of halfway sites to be given to Winter
(see Doc. 16, p. 8).
Discussion
Nature of the Suit
As already noted, the original complaint (Doc. 1) was ambiguous; the Court
could not discern whether Winter wanted to pursue a civil rights action or a
petition for writ of habeas corpus.

The Amended Complaint (Doc. 16) is

specifically brought pursuant to 42 U.S.C. § 1983, which pertains to civil rights
claims. The remedies sought are of the sort that generally fall within the ambit of
Section 1983, and do not include a request for release on parole. Rather, Winter
requests, in pertinent part, that steps be taken that will afford him due process—
hopefully resulting in release on parole. Still, the Amendment Complaint and a
few of Winter’s “notices,” suggest that winter is seeking release.

The Court, cannot sua sponte alter the nature of the suit and must take the
pleading as presented. See Glaus v. Anderson, 408 F.3d 382, 389-90 (7th Cir.
2005); Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999).

Moreover, in

keeping with Wilkinson v. Dotson, 544 U.S. 74 (2005), Section 1983 appears to
be the appropriate avenue for the type of relief sought: declaratory and injunctive
relief in the form of proper procedural due process that will, hopefully, result in
parole.

See, e.g., Murdock, 2014 WL 916992, *5. Thus, Winter’s constitutional

claims are cognizable under Section 1983.
Now that it is clear that Winter desires to proceed under Section 1983, as
opposed to pursuing a petition for writ of habeas corpus, the appropriate filing fee
can be assessed, as the Court forewarned in its prior order (Doc. 7). The $5 filing
fee for a habeas corpus action was previously assessed as a matter of course (Doc.
4).

The amount owed for filing a civil rights action is $400—$350 if the plaintiff

is granted pauper status, which Winter has been granted. The Court’s July 14,
2014, order regarding the collection of the $5 fee (Doc. 4) will be vacated and a
new order will be entered directing that the $350 filing fee will be collected in
accordance with 28 U.S.C. § 1915(b).
Preliminary Review
This case is now before the Court for a preliminary review of the complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or,
in any event, as soon as practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.– On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Frivolousness is an

objective standard that refers to a claim that “no reasonable person could
suppose to have any merit.” Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir.
2000). An action fails to state a claim upon which relief can be granted if it does
not plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement
to relief must cross “the line between possibility and plausibility. Id. at 557.

At

this juncture, the factual allegations of the pro se complaint are to be liberally
construed.

See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821

(7th Cir. 2009).
Although Counts 1 and 2 may be cognizable under Section 1983, the Court
must still review each count to ensure a colorable claim has been stated as to
each defendant.
Count 1
The Eighth Amendment to the United States Constitution protects
prisoners from being subjected to cruel and unusual punishment. U.S.CONST.,

amend. VIII. See also Berry v. Peterman, 604 F.3d 435, 439 (7th Cir. 2010).
The Eighth Amendment encompasses a claim that prison officials, acting with
deliberate indifference, hold an inmate beyond the term of his incarceration
without penological justification. See Armato v. Grounds, 766 F.3d 713, 721 (7th
Cir. 2014) (citing Campbell v. Peters, 256 F.3d 695, 700 (7th Cir. 2001). At this
early point, the Court assumes that Winter was held beyond his release date, but
that does not end the inquiry.
Section 1983 creates a cause of action based on personal liability and
predicated upon fault; thus, “to be liable under [Section] 1983, an individual
defendant must have caused or participated in a constitutional deprivation.”
Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005) (citations
omitted).

Because personal involvement is required for liability to attach, the

respondeat superior doctrine—supervisor liability—is not applicable to Section
1983 actions.

Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001)

(quoting Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)).
Allegations that senior officials were personally responsible for creating the
policies, practices and customs that caused the constitutional deprivations can
suffice to demonstrate personal involvement for purposes of Section 1983
liability. See Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 615 (7th Cir.
2002).

Also, “[s]upervisory liability will be found … if the supervisor, with

knowledge of the subordinate’s conduct, approves of the conduct and the basis for

it.” Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 477 (7th Cir.
1997); Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001).
There are no allegations in the narrative portion of the Amended Complaint
regarding IDOC Director Salvador Godinez or Deputy Director Donald Gaetz.
Godinez and Gaetz are merely described as being “legally responsible for the
overall operation” of IDOC institutions, including Lawrence Correctional Center
(see Doc. 16, p. 2).

In essence, Winter is attempting to impose liability upon

Godinez and Gaetz under the respondeat superior doctrine, which, as already
noted, is not applicable to Section 1983 claims. Therefore, Godinez and Gaetz
will be dismissed without prejudice from Counts 1 and 2—the Section 1983
claims. 3

Based on the allegations in the Amended Complaint regarding the

Lawrence defendants’ respective roles in the process of securing a housing site
(and some apparent contradictions with the process prescribed under 730 ILCS
5/3-14-2), each defendant’s personal involvement appears plausible.
In addition to individual involvement in the alleged constitutional
deprivation, a defendant must have acted or failed to act out of deliberate
indifference.

Proving deliberate indifference requires more than a showing of

negligent or even grossly negligent behavior; rather, a defendant must have acted
with the equivalent of criminal recklessness. Farmer v. Brennan, 511 U.S. 825,
3

Illinois, as a general matter, recognizes the respondeat superior doctrine. See
Adames v. Sheahan, 909 N.E.2d 742, 755 (Ill. 2009); see also Doe v. City of
Chicago, 360 F.3d 667, 670 (7th Cir. 2004). Godinez and Gaetz will, therefore,
not be dismissed from Counts 3-5, the state law claims.
However, no
independent respondeat superior claim is asserted by Winter or recognized by the
Court.

835-37 (1994); Armato, 766 F.3d at 721.

Again, because the Lawrence

defendants’ respective roles in the process of securing a housing site is unclear,
the possibility that each of those individuals acted with deliberate indifference
cannot be decisively determined at this time. Consequently, Count 1, the Eighth
Amendment claim, shall proceed against defendants Warden Stephen Duncan,
Clinical Services Director Randy Stevenson and Counselor Williams.
Count 2
Count 2 pertains to whether the defendants denied Winter due process in
violation of the Fourteenth Amendment when they failed to assist in lining up a
housing site.

The Fourteenth Amendment’s Due Process Clause prohibits the

deprivation of life, liberty, and property without due process of law. U.S. CONST.,
amend. XVI; Matamoros v. Grams, 706 F.3d 783, 789 (7th Cir. 2013). Although
only “notice pleading” is required (see FED.R.CIV.P. 8(a)(2)), to succeed on a Due
Process Clause claim, a plaintiff must prove: (1) a cognizable liberty interest; (2) a
deprivation of that liberty interest; and (3) an absence of due process. See Mann
v. Vogel, 707 F.3d 872, 877 (7th Cir.2013) (citing Khan v. Bland, 630 F.3d 519,
527 (7th Cir.2010); Polenz v. Parrott, 883 F.2d 551, 555 (7th Cir.1989)). In
addition, as noted relative to Count 1, “to be liable under [Section] 1983, an
individual defendant must have caused or participated in a constitutional
deprivation.” Pepper, 430 F.3d at 810.
Regarding whether Winter has a protectable liberty interest at stake,
“[t]here is no constitutional or inherent right of a convicted person to be

conditionally released before the expiration of a valid sentence.” Greenholtz v.
Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979).
Nevertheless, a state may create an expectation of parole that qualifies as a liberty
interest. Board of Pardons v. Allen, 482 U.S. 369, 376 (1987); Heidelberg v.
Illinois Prisoner Review Board, 163 F.3d 1025, 1026 (7th Cir. 1998).

The

Supreme Court of Illinois does not view the Illinois parole scheme as creating a
liberty interest. See generally, Hill v. Walker, 480, 948 N.E.2d 601, 605-06 (Ill.
2011). Nevertheless, the Court of Appeals for the Seventh Circuit has recognized
that if an inmate is on parole, he has a liberty interest in retaining that status.
See Domka v. Portage Cnty., Wis., 523 F.3d 776, 781 (7th Cir.2008) (noting that
it is “established that an inmate on parole has a liberty interest in retaining that
status”); see also Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (“We see,
therefore, that the liberty of a parolee, although indeterminate, includes many of
the core values of unqualified liberty and its termination inflicts a ‘grievous loss'
on the parolee and often on others. It is hardly useful any longer to try to deal
with this problem in terms of whether the parolee's liberty is a ‘right’ or a
‘privilege.’ By whatever name, the liberty is valuable and must be seen as within
the protection of the Fourteenth Amendment.”).

According

to

the

Amended

Complaint, Winter has been approved for release on parole and had parole
revoked at the prison gate because he had no approved housing site—he does not
take issue with the parole decision itself, or the revocation decision.
protected liberty interest is at issue.

Thus, a

Exactly what process is due Winter is not entirely clear, but according to
the Amended Complaint, the defendant prison officials were supposed to assist
Winter in lining up a housing site when living with his family was deemed
unsuitable (for whatever reasons). In any event, it is alleged that officials have not
taken the necessary steps to secure him a site, and they will not provide him with
a list of approved sites so that he can take steps to get a place lined up. Thus, a
due process claim has been stated.
As with Count 1, questions remain regarding each defendant’s personal
involvement in the alleged deprivation. For these reasons, Count 2 shall proceed
against defendants Warden Stephen Duncan, Clinical Services Director Randy
Stevenson and Counselor Williams.
Counts 3-5
Count 3 alleges negligence; Count 4 alleges false imprisonment; and Count
5 pertains to intentional infliction of emotional harm. Counts 3, 4 and 5 are state
law claims stemming from the same underlying factual allegations underpinning
Counts 1 and 2 regarding the five defendant prison officials failing to assist in
lining up a housing site and failing to release Winter on his scheduled parole
date. 4 Counts 1 and 2 are properly brought under Section 1983—claims over
which this federal court has original jurisdiction (see 28 U.S.C. § 1331). The
4

The original complaint (Doc. 1) contained a claim that Warden Duncan told
Winter’s ailing mother that she would never see her only son again. That claim is
not reasserted in the Amended Complaint (Doc. 16), although documents
attached to the Amendment Compliant pertain to Winter’s mother (see Doc. 16,
pp. 10-12). Thus no claims are recognized based upon allegations regarding
Winter’s mother.

Court may exert supplemental jurisdiction over state law claims that are “so
related to claims in the action within such original jurisdiction that they form part
of the same case or controversy under Article III of the United States
Constitution.” 28 U.S.C. § 1367.
Counts 3-5 appear to be adequately pleaded and will not be dismissed at
this early juncture. Counts 3-5 shall proceed in this same case as supplemental
claims against all five defendants:

IDOC Director Salvador Godinez, Deputy

Director Donald Gaetz, Warden Stephen Duncan, Clinical Services Director Randy
Stevenson and Counselor Williams.
Disposition
IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to alter
the record to reflect that this action is brought pursuant to 42 U.S.C. § 1983, and
is not as a petition for writ of habeas corpus. Accordingly, the party designations
shall be changed to “plaintiff” and “defendant.” Also, by random draw, this case
shall be REASSIGNED to the docket of a district judge who is designated to
preside over such cases.
IT IS FURTHER ORDERED that the Court’s July 14, 2014, order
regarding Winter’s pauper status and the filing fee (Doc. 4) is VACATED. A new
order regarding the collection of the applicable $350 filing fee shall issue
separately.
IT IS FURTHER ORDERED that Winter’s motions for counsel (Docs. 13,
15) are DENIED without prejudice; his motion for notification (Doc. 11) is

STRICKEN; his motion for notification (Doc. 14) is GRANTED, in that the
Amended Complaint (Doc. 16) is deemed timely filed; his motion to notify (Doc.
19) is DENIED AS MOOT; his Petition Against Field Service, Resource Placement
(Doc. 20) is STRICKEN; and his Amended Motion for False Imprisonment (Doc.
21) is DENIED.
IT IS FURTHER ORDERED that LAWRENCE CORRECTIONAL CENTER
and IDOC, which were not named as defendants to the Amended Complaint, are
VOLUNTARILY DISMISSED without prejudice.
IT IS FURTHER ORDERED that defendants SALVADOR GODINEZ and
DONALD GAETZ are DISMISSED without prejudice from COUNTS 1 and 2.
IT IS FURTHER ORDERED that COUNTS 1 and 2 shall otherwise
PROCEED against defendants STEPHEN DUNCAN, RANDY STEVENSON and
WILLIAMS.
IT IS FURTHER ORDERED that COUNTS 3-5 shall PROCEED against
defendants SALVADOR GODINEZ, DONALD GAETZ, STEPHEN DUNCAN,
RANDY STEVENSON and WILLIAMS.
The Clerk of Court shall prepare for defendants SALVADOR GODINEZ,
DONALD GAETZ, STEPHEN DUNCAN, RANDY STEVENSON and WILLIAMS:
(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 the 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 the 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.
The 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 a United
States Magistrate Judge for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to a United States
Magistrate Judge 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 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 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.
Signed this 4th day of February, 2015.

David R.
Herndon
2015.02.04
10:35:49 -06'00'
United States District Judge