Gabb v. Guyer et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge J. Phil Gilbert on 2/5/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TYRONE GABB, #K-56693,

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Plaintiff,
vs.
MIKE GUYER
and STEPHEN DUNCAN,
Defendants.

Case No. 16-cv-00119-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This case was severed from Gabb v. Wexford Health Source, Inc., et al., No. 15-cv-1415NJR (original case), pursuant to a Memorandum and Order entered in the original case on
February 2, 2016.

(Doc. 8, original case; Doc. 1, instant case).

Consistent with the

Memorandum and Order, the instant case will address the following claim:
COUNT 2 against DEFENDANTS GUYER and DUNCAN for housing Plaintiff
in unsanitary conditions and failing to repair his broken toilet for seven days.
Count 2 survives preliminary review under 28 U.S.C. § 1915A and shall proceed against
both defendants at this time. Instructions for service of this lawsuit on both defendants is set
forth in the below disposition.
Pending Motion
Plaintiff has filed a motion for recruitment of counsel, which shall be REFERRED to a
United States Magistrate Judge for a decision.
Disposition
IT IS HEREBY ORDERED that with regard to COUNT 2, the Clerk of Court shall
prepare for Defendants GUYER and DUNCAN: (1) Form 5 (Notice of a Lawsuit and Request to
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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 (Doc. 2), the original Memorandum
and Order (Doc. 1), and this Memorandum and Order to the Defendants’ 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
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).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United States

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Magistrate Judge for further pre-trial proceedings, including a decision on the motion for
recruitment of counsel (Doc. 4).

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 § 1915, Plaintiff will be required to pay the full amount of costs, notwithstanding the fact
that his IFP motion 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: February 5, 2016
s/J. Phil Gilbert
U.S. District Judge

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