Brown v. Gephart

Filing 6

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 1/28/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN D. BROWN, # B-34351,
Plaintiff,
vs.
ALAN GEPHART,
Defendant.

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Case No. 14-cv-1372-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter is before the Court for case management. On December 12, 2014, following
the Memorandum and Order entered in Brown v. Ritchey, et al., Case No. 14-cv-1122-NJRDGW (Doc. 1 in the instant case), this matter was severed from the original case. This severed
claim was designated as Count 7 in the original case, and it represents Plaintiff’s retaliation
claims against Defendant Gephart. Plaintiff was directed to notify the Court no later than
January 15, 2015, if he did not wish to proceed with this severed claim, in order to avoid
incurring an additional $350.00 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. 1 Accordingly,
service shall be ordered on the Defendant in this case, and the matter shall be referred to a United

1

Plaintiff did file a motion for reconsideration in the original case (Doc. 13 in Case No. 14-cv-1122-NJRDGW) arguing, inter alia, that the two remaining claims (Count 6 in the original case and Count 7, which
was severed into this case) should not have been severed and should be allowed to proceed together in
one case. Implicit in that request was Plaintiff’s desire to continue to pursue the instant claim. The
motion to reconsider has been denied in the original case.

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States Magistrate Judge for further consideration.
Because he did not voluntarily dismiss this severed case, Plaintiff shall be responsible for
paying the filing fee in this action. His pending motion for leave to proceed in forma pauperis
(“IFP”) (Doc. 3) in this case shall be addressed in a separate order.
IT IS HEREBY ORDERED that the Clerk of Court shall prepare for Defendant
GEPHART (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, the Order at Doc. 1, and this Memorandum and Order to the Defendant’s
place of employment as identified by Plaintiff. If the 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 the Defendant, and
the Court will require the Defendant to pay the full costs of formal service, to the extent
authorized by the Federal Rules of Civil Procedure.
If the Defendant cannot 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 Defendant (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 Defendant 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.
Defendant is 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 Donald G. Wilkerson for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Wilkerson
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,
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
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for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: January 28, 2015
__________________________
NANCY J. ROSENSTENGEL
United States District Judge

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