Owens v. Butler et al

Filing 2

MEMORANDUM AND ORDER severing case no. 14-55-JPG. Signed by Judge J. Phil Gilbert on 3/24/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES OWENS,
No. K83253,
Plaintiff,
vs.
MIKE ATCHISON,
JOHN DOE 1,
JOHN DOE 2,
JOHN DOE 3,
JOHN DOE 4,
JOHN DOE 5,
JOHN DOE 6,
JOHN DOE 7,
JOHN DOE 8,
JOHN DOE 9,
JOHN DOE 10,
JOHN DOE 11,
JOHN DOE 12,
JOHN DOE 13,
JOHN DOE 14,
JOHN DOE 15,
PHOENIX, and
OFFICER WELLS,
Defendants.

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Case No. 14-cv-00055-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff James Owens, an inmate currently housed at Lawrence Correctional Center,
brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. His
original complaint (Doc. 1) was dismissed and he was granted leave to file an amended
complaint, albeit limited to dramatically fewer claims and defendants (see Doc. 6).

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Timeliness of the Amended Complaint
As a preliminary matter, the Court must determine whether the amended complaint (Doc.
14) was timely filed.
Plaintiff missed the initial deadline for filing an amended complaint, but the Court
granted him an extension, which he also failed to meet (see Docs. 6, 12). Four days after the
prescribed deadline, a motion for an extension of time was filed (Doc. 13). Plaintiff explained
that he had not received the Court’s order until mere days before the new deadline. The
amended complaint was ultimately filed 23 days late.
For good cause shown, Plaintiff’s motion for an extension of time to file the amended
complaint (Doc. 13) is GRANTED; thus, the amended complaint (Doc. 14) is deemed timely.
The Standard of Review
The amended complaint (Doc. 14) is now before the Court for a preliminary review of
pursuant to 28 U.S.C. § 1915A. The Court is required to dismiss any portion of the amended
pleading that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law is immune from such relief.
28 U.S.C. § 1915A(b).
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

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allegations of the pro se pleading are to be liberally construed. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Amended Complaint
Plaintiff was limited to presenting only claims regarding assaults and the denial of
protective custody at Menard (see Doc. 6, p. 21). He has taken full advantage of the opportunity
to amend his pleading by attempting to link multiple claims by way of alleging conspiracy and
retliation.
According to the amended complaint (Doc. 14), in 2005 Plaintiff was granted protective
custody and administratively removed from Menard Correctional Center (“Menard”) because he
had “enemies” there. It is not entirely clear, but there may have been some connection between
Plaintiff’s move from Menard and a civil rights action he lodged against Menard personnel.
In 2011, when Plaintiff requested protective custody at Pinckneyville Correctional Center
(“Pinckneyville”), there was nowhere to place him, except in disciplinary segregation. He was
held there for nine months. Despite the fact that in 2005 Plaintiff had been ordered removed
from his enemies at Menard, and despite Plaintiff having filed suit against Menard staff, Transfer
Coordinator John Doe #3 directed that Plaintiff be transferred back to Menard. On December
21, 2011, John Doe#1 and John Doe #2 removed Plaintiff from his cell, shackled him, and
transported him from Pinckneyville to Menard.
Upon his arrival at Menard, Plaintiff was “verbally and physically assaulted” by six
correctional officers, John Does #4-9 (Doc. 14, p. 4). The next day, while Plaintiff was cuffed
and being moved by John Doe #10, John Doe #11 struck Plaintiff in the face—once with an open
hand, and a second time with a closed fist.

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A month after Plaintiff’s arrival at Menard, he was released from segregation, but his
request for placement in protective custody was denied. John Doe #12, without apparent cause,
assigned Plaintiff to the east cellhouse, which is designated for medium-to-high aggression
inmates; Plaintiff had been characterized as a low aggression inmate.
In October 2012, Plaintiff was celled with inmate Pleasant, who had never before been
celled with a white inmate. Pleasant destroyed Plaintiff’s personal property and stole his food.
Plaintiff complained but was not moved, so he commenced a hunger strike. Plaintiff could not
get Warden Atchison, or an unidentified lieutenant to comply with administrative directives
regarding hunger strikes (no details are offered in the amended complaint). On the tenth day of
what turned out to be an eleven-day hunger strike, Plaintiff was taken to the health care unit; his
ketone levels were high. While in the health care unit, Plaintiff asked John Does #14 and 15 for
protective custody, to no avail. Plaintiff also asked Officer (Sgt.) Wells. Wells refused the
request, but instructed Plaintiff to ask the cellhouse sergeant when Plaintiff returned from the
health care unit. Ultimately, Plaintiff was not allowed to speak to the cellhouse sergeant; instead,
he was forced back into the cell with inmate Pleasant (by whom is unknown).
On November 24, 2012, Plaintiff asked Counselor Phoenix for protective custody
placement. Phoenix promised to send Plaintiff the form, but Plaintiff never received it. Plaintiff
remained celled with inmate Pleasant until December 21, 2012, when Plaintiff was transferred to
Lawrence Correctional Center for no apparent reason.
Based on the allegations in the amended complaint, and Plaintiff’s own general
description of his legal claims, the Court finds it convenient to divide the pro se pleading into the
following counts. The parties and the Court will use these designations in all future pleadings

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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: All Defendants conspired to violate Plaintiff’s constitutional rights;
Count 2: All Defendants acted in retaliation for Plaintiff having filed suit against
Menard staff or for exercising his right to go on a hunger strike, all in
violation of the First Amendment;
Count 3: John Doe #3, the Transfer Coordinator, transferred Plaintiff back to
Menard, in violation of the Eighth Amendment;
Count 4: John Does #1 and #2 shackled Plaintiff, removed him from his cell and
transferred him to Menard, all in violation of the Eighth Amendment;
Count 5: John Does #4-9 verbally and physically assaulted Plaintiff, in violation of
the Eighth Amendment;
Count 6: John Doe #11 struck a handcuffed Plaintiff in the face, while John Doe
#10 held Plaintiff, all in violation of the Eighth Amendment;
Count 7: John Doe #12 assigned Plaintiff to the east cellhouse, and to be celled with
inmate Pleasant, in violation of the Eighth Amendment;
Count 8: Warden Atchison and other staff failed to comply with administrative
directives regarding hunger strikes;
Count 9: John Does #14 and #15, and Officer (Sgt.) Wells refused Plaintiff’s
requests for protective custody, in violation of the Eighth Amendment;
Count 10: Counselor Phoenix failed to send Plaintiff the form needed to request
protective custody, in violation of the Eighth Amendment; and
Count 11: Plaintiff was transferred from Menard to Lawrence without cause.
Discussion
Count 1
Plaintiff claims the defendants acted in conspiracy (see Doc. 14, p. 6).

Claims of

conspiracy necessarily require a certain amount of factual underpinning to survive preliminary
review. See Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008) (quoting Massey v. Johnson,

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457 F.3d 711, 716 (7th Cir. 2006)). “To establish the existence of a conspiracy, a plaintiff must
demonstrate that the conspirators have an agreement to inflict injury or harm upon him.” Sow v.
Fortville Police Dept., 636 F.3d 293, 304–05 (7th Cir. 2011). “The agreement may be inferred
from circumstantial evidence, but only if there is sufficient evidence that would permit a
reasonable jury to conclude that a meeting of the minds had occurred and that the parties had an
understanding to achieve the conspiracy’s objectives.” Id. at 305 (quoting Hernandez v. Joliet
Police Dept., 197 F.3d 256, 263 (7th Cir.1999)).
The amended complaint offers only a bald assertion of conspiracy.

There is no

circumstantial basis for reasonably inferring that the defendants acted in conspiracy. Therefore,
Count 1 will be dismissed without prejudice.
Count 2
In Count 2 it is alleged that all defendants acted in retaliation for Plaintiff having filed
suit against Menard staff in 2005 and/or for Plaintiff exercising his right to go on a hunger strike
in November 2012.
“An act taken in retaliation for the exercise of a constitutionally protected right violates
the Constitution.” DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir.2000). “Otherwise permissible
actions by prison officials can become impermissible if done for retaliatory reasons.”
Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000).

Although only notice pleading is

required, it is helpful to keep in mind that in order to prove a claim of retaliation for exercising
one’s First Amendment right, a plaintiff must demonstrate that: “(1) his speech was
constitutionally protected; (2) he has suffered a deprivation likely to deter free speech; and (3)
his speech was at least a motivating factor” behind the retaliatory actions. Massey v. Johnson,
457 F.3d 711, 716 (7th Cir. 2006). Circumstantial evidence—evidence from which a trier of fact

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may infer that retaliation occurred—can be used to establish a retaliation claim.

Kidwell v.

Eisenhauer, 679 F.3d 957, 966 (7th Cir. 2012).
Count 2 fails under the Twombly pleading standard relative to any claim premised upon
Plaintiff having filed suit in 2005 against Menard staff. Such a law suit is protected under the
First Amendment. Lewis v. Casey, 518 U.S. 343, 350 (1996); Lekas v. Briley, 405 F.3d 602, 614
(7th Cir. 2005). And, the Court will assume that the acts against Plaintiff were sufficient to deter
First Amendment activity. However, there is nothing from which to reasonably infer that any of
the 18 named defendants knew of the suit or had a retaliatory motive. It is impossible to move
the claim from the possible to the plausible in this particular situation, where there is no specific
allegation that any particular defendant acted in retaliation, and the six or seven year time gap
between the suit and the events at issue make the claim so tenuous—which is not to say that such
a long time gap is dispositive.
Relative to retaliation based upon Plaintiff going on a hunger strike in November 2012,
the group of defendants who encountered Plaintiff at the time of, or after, the hunger strike is
limited to those implicated in Counts 8-10: Warden Atchison, John Does #14 and #15, Officer
Wells, and Counselor Phoenix. The hunger strike appears to be activity protected under the First
Amendment. See Stefanoff v. Hays County, Tex., 154 F.3d 523, 527 (5th Cir. 1998) (hunger
strike may be protected activity if aimed at conveying a particularized message); see also Texas
v. Johnson, 491 U.S. 397 (1989) (discussing expressive conduct). Whether each Defendant acted
with the necessary motive remains to be seen. In any event, the action or inaction of each of
those defendants—as pleaded—cannot reasonably be said to be of the sort that would deter
further First Amendment activity.

Warden Atchison failed to comply with administrative

directives regarding hunger strikes, which has no obvious impact upon Plaintiff. John Does #14

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and #15, and Officer Wells, all denied Plaintiff protective custody while Plaintiff was in the
health care unit, which he did not allege posed a danger to him. Counselor Phoenix did not send
Plaintiff a form for requesting protective custody, but Plaintiff was not in physical danger from
his cellmate (see Count 7).
Count 2 will, therefore, be dismissed without prejudice.
Count 3
Count 3 pertains to IDOC Transfer Coordinator John Doe #3, who in 2011 ordered
Plaintiff transferred from Pinckneyville back to Menard, despite Plaintiff having been
administratively removed from that prison in 2005, and without regard to Plaintiff having filed
suit against Menard staff.
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).

Eighth Amendment protection extends to

conditions of confinement that pose a substantial risk of serious harm, including health and
safety.

See Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984 (7th Cir. 2012).

Furthermore, prison officials have a duty to protect prisoners “from violence at the hands of
other inmates.” See Washington v. LaPorte County Sheriff's Dep't, 306 F.3d 515, 517 (7th Cir.
2002). However, as a general matter, a prison official may be liable “only if he knows that
inmates face a substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994). That the officer
had actual knowledge of impending harm can be inferred from circumstantial evidence. Id. at
842. Proving deliberate indifference requires more than a showing of negligent or even grossly

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negligent behavior. Id. at 835. Rather, the defendant must have acted with the equivalent of
criminal recklessness. Id. at 836–37.
Although Plaintiff explains that there was nowhere to house him in protective custody at
Pinckneyville, it is possible that John Doe #3 acted with deliberate indifference to the fact that
Plaintiff had enemies at Menard (inmates and staff). John Doe #3, as Transfer Coordinator,
could have known about Plaintiff’s transfer out of Menard, and possibly even the law suit. At
this early juncture, there is insufficient information before the Court to definitively rule on this
claim. Count 3 shall proceed.
Count 4
Count 4 pertains to John Doe#1 and John Doe #2 removing Plaintiff from his cell at
Pinckneyville, shackling him, and transporting him to Menard. That behavior alone does not
suggest deliberate indifference to Plaintiff’s safety, excessive force, or any other constitutional
violation. Count 4 will, therefore be dismissed without prejudice.
Count 5
The basis for Count 5 is the “verbal and physical assault” by correctional officers John
Does #4-9 upon Plaintiff’s arrival at Menard. The intentional use of excessive force by prison
guards against an inmate without penological justification constitutes cruel and unusual
punishment. See Wilkins v. Gaddy, 559 U.S. 34 (2010); DeWalt v. Carter, 224 F.3d 607, 619
(7th Cir. 2000). However, without a bit more detail no constitutional claim is stated under the
Twombly pleading standard. Count 5 will be dismissed without prejudice.
Count 6
Count 6 alleges that while Plaintiff was cuffed and being moved by John Doe #10, John
Doe #11 struck Plaintiff in the face—once with an open hand, and a second time with a closed

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fist. The fact that Plaintiff was handcuffed reasonably opens up the possibility that unnecessary
and excessive force may have been used by John Doe #11. John Doe #10 may also face liability
because a correctional officer who stands by and watches while another officer uses excessive
force may be liable under the Eighth Amendment (see Harper v. Albert, 400 F.3d 1052, 1064
(7th Cir. 2005)). Count 6 shall, therefore, proceed.
Count 7
Count 7 revolves around the allegations that John Doe #12, without apparent cause,
assigned Plaintiff to the east cellhouse, which is designated for medium-to-high aggression
inmates and Plaintiff is a low aggression inmate. Furthermore, Plaintiff was celled with inmate
Pleasant, who had never before been celled with a white inmate. Pleasant destroyed Plaintiff’s
personal property and stole his food. Count 7 is construed as asserting that prison officials were
deliberately indifferent to a substantial risk of serious harm, in violation of the Eighth
Amendment. Any other intended constitutional claim should be considered dismissed without
prejudice.
As a preliminary matter, insofar as Plaintiff implies that it was wrong to house inmates of
different races together, the Supreme Court has cautioned against segregating inmates based on
race. See Johnson v. California, 543 U.S. 499, (2005) (government imposed racial classification
is subject to strict scrutiny, even when the purported rationale is prison security); Lindell v.
Houser, 442 F.3d 1033, 1035-36 (7th Cir. 2006).
“[P]risoners possess neither liberty nor property in their classifications and prison
assignments. States may move their charges to any prison in the system.” DeTomaso v.
McGinnis, 970 F.2d 211, 212 (7th Cir. 1992) (citing Montanye v. Haymes, 427 U.S. 236 (1976)).
See also Meachum v. Fano, 427 U.S. 215, 224 (1976) (the Constitution does not guarantee

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placement in a particular prison).1 Therefore, Plaintiff’s abrupt reassignment to a different cell,
and celling him with an inmate with a higher security classification, alone, does not offend the
Constitution.
There are no allegations that inmate Pleasant threatened physical harm or otherwise
posed a danger to Plaintiff’s safety. Rather, the only thing alleged is that Pleasant stole and/or
destroyed Plaintiff’s personal property, which is not a constitutional violation. If the state
provides an adequate remedy, the plaintiff has no civil rights claim. Hudson v. Palmer, 468 U.S.
517, 530–36 (1984) (availability of damages remedy in state claims court is an adequate, postdeprivation remedy). The Seventh Circuit has found that Illinois provides an adequate postdeprivation remedy in an action for damages in the Illinois Court of Claims. Murdock v.
Washington, 193 F.3d 510, 513 (7th Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir.
1993); 705 ILCS § 505/8.
For all of these reasons, Count 7 will be dismissed with prejudice.
Count 8
It is alleged that Warden Atchison and other staff (an unidentified lieutenant and
unspecified others) failed to comply with administrative directives regarding hunger strikes. The
noncompliance is not described in any detail whatsoever. In any event, the violations of internal
policies and procedures, as well as state rules or laws, does not give rise to a constitutional
violation. See Whitman v. Nesic, 368 F.3d 931, 935 n.1 (7th Cir. 2004). Therefore, Count 8 will
be dismissed with prejudice.

1

The caveat to this rule – involving transfer or assignment to a prison where the conditions
impose “atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life” – does not apply here. See Westefer v. Snyder, Civil No. 00-162-GPM (S.D. Ill.
decided July 20, 2010), citing Sandin v. Conner, 515 U.S. 472 (1995).
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Count 9
Count 9 also appears to be premised upon Plaintiff’s efforts to secure protective custody
in order to get away from inmate Pleasant, who was stealing and/or destroying his property.
While in the health care unit, Plaintiff asked John Does #14 and #15 for protective custody, to no
avail. Plaintiff also asked Officer (Sgt.) Wells. Wells refused the request, but instructed Plaintiff
to ask the cellhouse sergeant when Plaintiff returned from the health care unit.

Plaintiff

has

failed to state a colorable Eighth Amendment claim against any of the three defendants to this
claim. As explained relative to Count 7, Pleasant did not pose a risk to Plaintiff’s safety—only
to his property. Furthermore, there is nothing from which to infer deliberate indifference when
at the time Plaintiff asked for protective custody he was in the health care unit. If Plaintiff were
returned to the cell he could request protective custody, as Officer Wells explained. The only
danger Plaintiff faced (elevated ketones) was from a self-created situation, his hunger strike.
Count 9 will be dismissed with prejudice.
Count 10
Count 10 rests upon Plaintiff asking Counselor Phoenix for protective custody placement
and Phoenix not following through on a promise to send Plaintiff the necessary form. As
pleaded, Phoenix was, at best, negligent. Neither negligence nor even gross negligence will
violate the Eighth Amendment.

See Farmer v. Brennan, 511 U.S. 825, 835 (1994).

Furthermore, as already discussed relative to Count 7, Plaintiff’s cellmate, inmate Pleasant, did
not pose a danger to Plaintiff that would trigger Eighth Amendment protection. Count 7 will be
dismissed without prejudice.

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Count 11
Insofar as Plaintiff complains that he was transferred from Menard to Lawrence
Correctional Center for no apparent reason, the Court cannot help but note that Plaintiff did not
want to be at Menard to begin with. In any event, he has not attributed the transfer decision to
any defendant and, as explained relative to Count 7, he has no constitutional right to be housed at
any particular prison. There are no allegations that would trigger a due process analysis under
Sandin v. Conner, 515 U.S. 472 (1995). Count 11 will be dismissed without prejudice.
Severance
At this point, only Count 3 against Transfer Coordinator John Doe #3, and Count 6
against John Does #10 and #11 remain.
In George v. Smith, 507 F.3d 605 (7th Cir. 2007), the Seventh Circuit emphasized that
unrelated claims against different defendants belong in separate lawsuits, “not only to prevent the
sort of morass” produced by multi-claim, multi-defendant suits “but also to ensure that prisoners
pay the required filing fees” under the Prison Litigation Reform Act. George, 507 F.3d at 607,
(citing 28 U.S.C. § 1915(b), (g)). Counts 3 and 6 have no common defendants and nothing to do
with each other. The two claims must be severed into two separate actions, requiring Plaintiff to
pay an additional filing fee. Plaintiff will be given an opportunity to opt out of the newly
severed case without being obligated to pay the second filing fee.
Because none of the remaining defendants is known by name, the current warden of
Menard Correctional Center, Kim Butler, shall be named as a defendant in her official capacity
for the sole purpose of discovering the identities of the “John Doe” defendants. Time will be
allotted for discovery related to securing those identities.

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Disposition
IT IS HEREBY ORDERED that, Plaintiff’s motion for an extension of time to file the
amended complaint (Doc. 13) is GRANTED; the amended complaint (Doc. 14) is deemed
timely.
IT IS FURTHER ORDERED that COUNTS 7, 8 and 9 are DISMISSED with
prejudice.
IT IS FURTHER ORDERED that COUNTS 1, 4, 5, 10 and 11 are DISMISSED
without prejudice.
IT IS FURTHER ORDERED that Defendants WARDEN MIKE ATCHISON, JOHN
DOES #1-2, 4-9 and 12-15, COUNSELOR PHOENIX and OFFICER WELLS are all
DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Warden of Menard Correctional Center, Kim
Butler, is hereby named as a defendant to COUNTS 3 and 6, in her official capacity, for the
sole purpose of discovering the identities of the “John Doe” defendants
IT IS FURTHER ORDERED that COUNT 3 against Transfer Coordinator John
Doe #3 and KIM BUTLER, and COUNT 6 against JOHN DOES # 10 and #11 and KIM
BUTLER, shall PROCEED; however, COUNT 6 shall be SEVERED into a new case.
The Clerk of Court is DIRECTED to open a new case relative to COUNT 6 against
JOHN DOES # 10 and #11 and KIM BUTLER (in her official capacity, solely for the
purpose of identifying the identities of the other defendants). A district judge shall be
randomly assigned to the new case.
The Court will await Plaintiff’s filing regarding whether he wants to proceed with the
new case (in re Count 6) before proceeding with a referral order and service of the summons and

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complaint upon Warden Butler. No motions filed relative to the original case will be
incorporated into the new case; therefore, for example, if Plaintiff wants to proceed as a pauper
in the new case he must file a motion in that case.
IT IS FURTHER ORDERED that on or before April 11, 2015, Plaintiff shall state in a
writing whether he desires to proceed in the new case relative to Count 6, or he shall move for
the voluntary dismissal of that case pursuant to Federal Rule of Civil Procedure 41(a)(1)(A). No
filing fee will be assessed in the new case if it is voluntarily dismissed. If Plaintiff elects to
proceed with the new case, he must simultaneously file in that case a new motion for leave to
proceed in forma pauperis, or pay the filing fee in full at that time. Failure to comply with this
directive will result in the dismissal of the new case and the filing fee will then be automatically
assessed.
IT IS FURTHER ORDERED that, with respect to the present case (Case No. 14-cv00055-JPG) only:
The Clerk of Court shall prepare for Defendant KIM BUTLER: (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 send these forms, a copy of the amended complaint,
and this Memorandum and Order to Defendant Warden Butler at Menard Correctional Center.
Service shall not be made on Defendant “John Doe #3 until such time as Plaintiff has
identified him/her by name in a properly filed (second) amended complaint.

Plaintiff is

ADVISED that it is his responsibility to provide the Court with the name and service address for
this individual.
If Defendant Warden Butler 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

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appropriate steps to effect formal service on Defendant, and the Court will require Defendant to
pay the full costs of formal service, to the extent authorized by the Federal Rules of Civil
Procedure.
If Warden Butler no longer can be found at Menard Correctional Center, the institution
shall inform the Court and provide the Court with the name of the current warden of the prison.
Plaintiff shall serve upon Defendant(s) (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(s) 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 Warden Kim Butler is ORDERED to timely file an appropriate responsive
pleading to the amended complaint and shall not waive filing a reply pursuant to 42 U.S.C. §
1997e(g). In this unusual situation, the responsive pleading is intended to confirm Warden
Butler’s entry into the case in her official capacity, thereby triggering the assigned magistrate
judge to commence efforts to learn the identity of John Doe #3.
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United States
magistrate judge for further pre-trial proceedings, including discovery specifically aimed at
identifying John Doe #3.
Further, this entire matter shall be REFERRED to a United States Magistrate 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

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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: March 24, 2015

s/J. Phil Gilbert
United States District Judge

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