Cole v. Johnson et al

Filing 76

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS 73 .The Clerk of Court shall prepare for Defendants COREY KNOP in his individual capacity and CHAD RAY in his individual capacity: (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 Defendants place of employment asidentified by Plaintiff. Signed by Judge J. Phil Gilbert on 7/1/2015. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAMEON COLE, R13404,
Plaintiff,
vs.
CEDRICK L. JOHNSON, et al.,
Defendants.

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Case No. 14-cv-01059-JPG-PMF

MEMORANDUM AND ORDER
This matter comes before the court on the Report and Recommendation (“R & R”) (Doc.
73) of Magistrate Judge Philip M. Frazier with regard to Plaintiff Dameon Cole’s Amended
Complaint (Doc. 71). There were no objections filed by either party.
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. The Court has discretion to conduct a new hearing and may consider the record before the
magistrate judge anew or receive any further evidence deemed necessary. Id. “If no objection or
only partial objection is made, the district court judge reviews those 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 and Recommendation. The Court has
reviewed the entire file and finds that the R & R is not clearly erroneous. Accordingly, the Court
hereby ADOPTS the Report and Recommendation in its entirety (Doc. 73) and Plaintiff’s
Amended Complaint will proceed on the following counts:
Count 1:

Eighth Amendment deliberate indifference claim against Beth Treadway.

Count 2:

Eighth Amendment failure to protect claim against Marc Hodge.

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Count 3:

Eighth Amendment failure to protect claim against Warden Duncan.

Count 4:

Eighth Amendment deliberate indifference claim against Corey Knop.

Count 5:

Eighth Amendment deliberate indifference claim against Lieutenant Chad
Ray.

All other claims are DISMISSED without prejudice. The Clerk of Court shall prepare
for Defendants COREY KNOP in his individual capacity and CHAD RAY in his individual
capacity: (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 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

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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). 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.
DATED: 7/1/2015

s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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