Booker v. McCarty et al

Filing 13

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier, granting 7 MOTION to Amend/Correct 1 Complaint filed by Willie Booker. Signed by Judge Staci M. Yandle on 3/4/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIE BOOKER,
#B-61837,
Plaintiff,
vs.
LESLIE McCARTY,
JOHN R. BALDWIN,
KIMBERLY BUTLER,
JEANETTE COWAN,
WILLIAM SPILLER,
and JOHN DOE #1 -#131,
Defendants.

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Case No. 16-cv-00194-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
This civil rights action arises out of the denial of Plaintiff Willie Booker’s request for
protective custody at Menard Correctional Center (“Menard”) in November 2015. (Doc. 7).
Plaintiff 1 is a convicted sex offender who is serving a 36-year sentence for first degree murder
and a 22-year sentence for aggravated battery with a firearm. Since December 2014, he has
received numerous written and verbal threats from unknown inmates, who promise to kill him if
his “sex offender ass” returns to the general population. (Id. at 3). Because of these threats,
Plaintiff has requested protective custody on numerous occasions. Each request has been denied.

1

Plaintiff is also a “three-striker.” See 28 U.S.C. § 1915(g). Prior to filing this action, Plaintiff incurred
three “strikes” by filing suits that were dismissed as frivolous or for failure to state a claim upon which
relief may be granted. See Booker v. City of Rdfd., IL, Case No. 03-cv-50066 (N.D. Ill., dismissed March
27, 2003); Booker v. Mitchell, Case No. 10-cv-00312 (S.D. Ill., dismissed November 5, 2010); Booker v.
O’Conner, Case No. 15-cv-50052 (N.D. Ill., dismissed April 14, 2015). Section 1915(g) bars Plaintiff
from proceeding in forma pauperis (“IFP”) unless he is in “imminent danger of serious physical injury.”
Id. The Central District of Illinois granted his IFP Motion, presumably because he satisfied this standard.

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Plaintiff now brings this civil rights action pursuant to 42 U.S.C. § 1983 against the
officials who denied his request for protective custody in November 2015. He names the
following individuals as defendants: John Baldwin (Illinois Department of Corrections (“IDOC”)
director), Leslie McCarty (Administrative Review Board (“ARB”) chairperson), Kimberly Butler
(warden), Jeanette Cowan (clinical services), an unknown officer (“John Doe #1”), and
William Spiller (intelligence unit officer). Plaintiff claims that these defendants denied his
request for protective custody without sufficient evidence or a written summary of their reasons.
He now sues them for conspiring to violate his Eighth and Fourteenth Amendment rights and for
emotional distress.

(Doc. 1-1 at 17-18).

Plaintiff seeks monetary damages, declaratory

judgment, and injunctive relief. He also requests a preliminary injunction that requires Menard
officials to place him in protective custody.
This is not the first time that Plaintiff has challenged a decision denying his request for
protective custody at Menard. 2 Last year, he filed a related action against Warden Butler,
Bryan Gleckler, and Terri Anderson. See Booker v. Gleckler, et al., Case No. 15-cv-00657SMY-PMF (S.D. Ill. 2015) (“related action”). The related action is currently pending before this
Court. In it, Plaintiff challenges the denial of his prior requests for protective placement at
Menard under the Eighth Amendment, Fourteenth Amendment, and Illinois state law.
In addition to his request for monetary damages, Plaintiff also seeks placement in protective
custody for the same reasons he now seeks it in this action.

2

Plaintiff originally filed both actions in other federal judicial districts. The related action was
transferred to this District from the Northern District of Illinois on June 11, 2015. See Booker v. Gleckler,
et al., Case No. 15-cv-4965 (N.D. Ill. 2015). The instant action was transferred from the Central District
of Illinois on February 23, 2016. Booker v. McCarty, et al., Case No. 16-cv-3018 (C.D. Ill. 2016).
Because of the substantial overlap between the cases, both matters have been assigned to the undersigned
Judge and will also be referred to the same United States Magistrate Judge for handling.

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The First Amended Complaint (Doc. 7) is now before this Court for preliminary review.
Plaintiff filed this action in the Central District of Illinois on January 22, 2016. Booker v.
McCarty, et al., Case No. 16-cv-03018 (C.D. Ill. 2016). The case was transferred to this District
on February 23, 2016. Before it was transferred, Plaintiff filed an “Amended Class Action
Complaint” 3 (“First Amended Complaint”) (Doc. 7) on February 5, 2016. The First Amended
Complaint supersedes and replaces the original Complaint (Doc. 1), rendering the original void.
See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1 (7th Cir. 2004). The First
Amended Complaint is the subject of this preliminary screening order.
Under 28 U.S.C. § 1915A, the Court is required to promptly screen prisoner complaints
to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). When doing so, the Court must
dismiss any portion of the complaint 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). The First Amended Complaint survives
preliminary review under this standard.

3

Plaintiff attempts to bring a class action on behalf of all inmates who have been denied protective
custody in the IDOC since December 2014. Plaintiff names 130 unknown (“John Does ##2-131”) highranking IDOC officials as defendants. It is not necessary to address the issue of class certification at this
time because no motion for class certification is pending. Had Plaintiff filed one, it would be subject to
denial because a prisoner bringing a pro se action cannot represent a class of plaintiffs. See Oxendine v.
Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (holding it would be plain error to permit imprisoned pro
se litigant to represent his fellow inmates in a class action). The Federal Rules permit class actions to be
maintained only if the class representative (in this case the pro se Mr. Booker) “will fairly and adequately
protect the interests of the class,” FED. R. CIV. P. 23(a)(4), and “[e]very court that has considered the issue
has held that a prisoner proceeding pro se is inadequate to represent the interests of his fellow inmates in
a class action.” Lee v. Gardinez, No. 11–cv–570–GPM, 2012 WL 143612, at *1 n. 1 (S.D. Ill.,
Jan. 18, 2012) (quoting Craig v. Cohn, 80 F. Supp. 2d 944, 946 (N.D. Ind. 2000) (internal citations and
quotation marks omitted)). This does not prevent the Court from screening this case pursuant to
28 U.S.C. § 1915A. See Hall v. Brown, Civil No. 10–724–GPM, 2011 WL 1403036, at *1 n. 1 (S.D. Ill.,
Apr. 13, 2011) (quoting Morlan v. Universal Guar. Life Ins. Co., 298 F.3d 609, 616 (7th Cir. 2002))
(“[U]ntil certification there is no class action but merely the prospect of one; the only action is the suit by
the named plaintiff[ ].”). Because John Does ##2-131 are only named in connection with the class action
claim(s), this screening order omits all further reference to these defendants.

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First Amended Complaint
Plaintiff alleges that he is a convicted sex offender and former member of a gang known
as the Gangster Disciples. (Doc. 7). He has been diagnosed with paranoid schizophrenia and
anxiety. Given this combination of factors, it is difficult and even dangerous for Plaintiff to live
in Menard’s general prison population.

For his safety and the safety of other inmates,

Plaintiff has repeatedly requested protective custody.
Plaintiff maintains that Menard’s violent prison population and perpetual overcrowding
render protective placement impossible for most inmates. Menard is a maximum security prison
that houses 3,800 inmates. (Id. at 8). It is allegedly considered the most violent prison in the
State of Illinois. As of January 22, 2016, only twenty-one cells at the prison were used for
protective custody. Another nine cells were designated for use by inmates who were denied
protective custody and awaiting return to the general population. As of the same date, all thirty
cells were full. Plaintiff estimates that the number of prisoners being denied protective custody
is ninety-five percent.
In December 2014, Plaintiff allegedly received an anonymous letter threatening him with
death if he returned to the general population. Plaintiff has since received similar threats.
He reported these threats to prison officials. He also filed four separate requests for protective
custody between November 24, 2014 and November 6, 2015. (Id. at 7). Each request was
denied.
This lawsuit challenges the most recent denial of a request for protective placement.
On November 6, 2015, Plaintiff submitted a written request for placement in protective custody
after he was attacked by an unknown inmate in the North Chow Hall on October 20, 2015.

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(Id. at 14). In his written request, Plaintiff identified nine known enemies and also claimed that
correctional officers were going to kill him.
Plaintiff appeared before Defendants Cowan, Spiller and an unknown officer (“John Doe
#1”) on November 16, 2015. At this hearing, Plaintiff testified that he was attacked by an
unknown inmate in the North Chow Hall on October 20, 2015. He recognized his attacker as a
member of the Black Peace Stone gang. The attack followed his receipt of an anonymous and
threatening letter. (Id.). He asked that his request for protective placement be granted. The
request was denied. In reference to the threatening letter, Defendant Cowan stated that she “was
not addressing that issue again.” (Id. at 14; Doc. 1-1 at 5). Defendants Cowan and Doe #1 then
voted to deny the request. (Id.). Defendant Spiller agreed with the decision. (Doc. 1 at 21).
Upon review of the decision, Defendants Butler, McCarty, and Baldwin concurred. (Id. at 15,
21, 23; Doc. 1-1 at 13). Plaintiff alleges that he was never provided with a written summary of
the reasons for this decision and contends that it was based on insufficient evidence under 20 Ill.
Admin. Code § 501.320.
Within a few hours of the decision, Plaintiff overheard other inmates say that “he was
gonna get what was coming to him.” (Id. at 16). Anxious about his safety, Plaintiff began
suffering from chest pain, headaches, nightmares and a loss of appetite. (Id.). He attempted to
commit suicide and went on a hunger strike, all in an attempt “to keep himself safe.” (Id. at 7).
Plaintiff was placed on suicide watch on December 28, 2015. (Id. at 17). He went on a 13-day
hunger strike two days later and was given intravenous fluids and headache medicine during his
hunger strike. The day after he ended the hunger strike, Plaintiff was placed in the same cell
house where his October attack occurred.

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Plaintiff now claims that the decision to deny his request for protective placement in
November 2015 amounted to a conspiracy by Defendants Butler, McCarty, Baldwin, Cowan,
Spiller and Doe #1 to violate his right to be free from cruel and unusual punishment under the
Eighth Amendment, to deny him due process and equal protection of the law under the
Fourteenth Amendment, and to cause emotional distress under Illinois state law. (Id. at 4, 7).
He seeks monetary damages, declaratory judgment, and injunctive relief.
Merits Review Under 28 U.S.C. § 1915A
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court
deems it appropriate to reorganize the claims in the First Amended Complaint into five (5)
counts, as set forth below.
Count 1:

Defendants failed to protect Plaintiff from a known risk of
harm, in violation of the Eighth Amendment, when they denied
his request for protective custody in November 2015.

Count 2:

Defendants deprived Plaintiff of his right to due process of law,
in violation of the Fourteenth Amendment, when they denied
his request for protective custody without sufficient evidence
and without producing a written summary of the reasons for
their decision pursuant to 20 Ill. Admin. Code § 501.320.

Count 3:

Defendants violated Plaintiff’s right to equal protection of the
law, in violation of the Fourteenth Amendment, when they
denied him protective custody.

Count 4:

Defendants’ decision to deny Plaintiff’s request for protective
placement in November 2015 resulted in the intentional
infliction of emotional distress, in violation of Illinois state law.

Count 5:

Defendants conspired to violate Plaintiff’s constitutional rights.

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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 should not
be construed as an opinion regarding their merit.
Count 1 – Failure to Protect
The Eighth Amendment failure to protect claim (Count 1) shall receive further review
against Defendants Butler, McCarty, Baldwin, Cowan, Spiller, and Doe #1. The Supreme Court
has long held that “prison officials have a duty . . . to protect prisoners from violence at the hands
of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal citations omitted);
see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). However, not every harm caused
by another inmate translates into constitutional liability for the corrections officers responsible
for the prisoner’s safety. Farmer, 511 U.S. at 834. In order to state a failure to protect claim, a
plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious
harm, and that the defendants acted with “deliberate indifference” to that danger. Id.; Pinkston,
440 F.3d at 889. A plaintiff must also prove that prison officials were aware of a specific,
impending and substantial threat to his safety, often by showing that he complained to prison
officials about a specific threat. Pope v. Shafer, 86 F.3d 90, 92 (7th Cir. 1996).
Under § 1983, a state official may be held liable if he “caused or participated in a
constitutional deprivation.”

Sheik-Abdi v. McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994)

(citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)); see also Pepper v. Village of
Oak Park, 430 F.3d 809, 810 (7th Cir. 2005). The official “must know about the conduct and
facilitate it, approve it, condone it, or turn a blind eye. . . .” Gentry v. Duckworth, 65 F.3d 555,
561 (7th Cir. 1995) (citations omitted). However, a prison official who rules “against a prisoner
on an administrative complaint does not cause or contribute to the violation. A guard who stands

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and watches while another guard beats a prisoner violates the Constitution; a guard who rejects
an administrative complaint about a completed act of misconduct does not.” George v. Smith,
507 F.3d 605, 609-610 (7th Cir. 2007) (emphasis added).
In this case, as in his related action, Plaintiff alleges that the denial of his request for
protective custody places him in imminent danger of serious physical harm. He alleges that all
of all of the defendants are liable for failing to protect him because they have “turned a blind
eye” to the substantial risk of serious harm by denying Plaintiff’s request for protective
placement made after he received threatening letters from anonymous inmates and was actually
attacked in October 2015. Given these allegations, the Plaintiff will be allowed to proceed on
Count 1 against Defendants Butler, McCarty, Baldwin, Cowan, Spiller, and Doe #1.
Count 2 – Denial of Due Process
Plaintiff’s Fourteenth Amendment due process claim (Count 2) does not survive
screening. Plaintiff argues that he was entitled to a written summary of the reasons his request
for protective custody was denied under 20 Ill. Admin. Code § 501.320. Section 501.320
concerns the procedures for placement in protective custody and provides that reassignment from
the general population to protective custody should be accomplished as quickly as possible,
following an inmate’s request. § 501.320(a). Within ten working days of his placement in
protective custody, the inmate must appear before an Assignment Officer, who makes a
recommendation concerning the inmate’s need for continued protective custody. § 501.320(b).
Section 501.320(b) sets forth factors the Assignment Officer may consider when making his
recommendation. Id. If the Chief Administrative Officer decides that the inmate should be
removed from protective custody, the inmate must then be served with a written copy of the

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decision. § 501.320(c). The inmate must remain in protective custody while any grievance of
the decision remains pending. § 501.320(d).
This regulation does not create a protected liberty interest in remaining in protected
custody.

See Kellas v. Lane, 923 F.2d 492 (7th Cir. 1990) (holding that Illinois prison

regulations governing protective custody “do not create a due process claim of entitlement on the
inmates’ behalf”). Id. at 495. In this context, the regulation does not give rise to a liberty
interest that is enforceable under the Constitution. Olim v. Wakinekona, 461 U.S. 238, 249
(1983); Smith v. Shettle, 946 F.2d 1250, 1252 (7th Cir. 1991). Language in the regulation
requiring personal service of a written decision to remove the inmate from protective custody
does not change this result. The expectation that certain procedures will be followed before
certain action is taken simply does not create a liberty interest protected by the due process
clause. Olim, 461 U.S. at 250-51; Smith, 946 F.2d at 1254; Shango v. Jurich, 681 F.2d 1091,
1100 (7th Cir. 1982). Under the circumstances, Count 2 shall be dismissed without prejudice
against the defendants.
Count 3 – Denial of Equal Protection
The First Amended Complaint supports no Fourteenth Amendment equal protection
claim (Count 3) against the defendants. Plaintiff does not develop this claim in his First
Amended Complaint. He instead relies on conclusory allegations of equal protection violations
against the defendants. Courts cannot “accept as adequate abstract recitations of the elements of
a cause of action or conclusory legal statements.” Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.
2009). The claim is subject to dismissal on this ground alone.
There are other reasons for dismissing Count 3. The Fourteenth Amendment provides
that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the

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laws.” U.S. CONST. amend. XIV, § 1. The right of equal protection “has long been limited to
instances of purposeful or invidious discrimination rather than erroneous or even arbitrary
administration of state powers. The gravamen of equal protection lies not in the fact of
deprivation of a right but in the invidious classification of persons aggrieved by the state’s
action.” Briscoe v. Kusper, 435 F.2d 1046, 1052 (7th Cir. 1970). See also Huebschen v.
Department of Health & Soc. Servs., 716 F.2d 1167, 1171 (7th Cir. 1983) (a person asserting an
equal protection violation “must show intentional discrimination against him because of his
membership in a particular class, not merely that he was treated unfairly as an individual”),
abrogated on other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
Thus, to state a claim for an equal protection violation, a prisoner must allege that he or
she is a member of a protected class, and that state actors treated members of the prisoner’s class
less favorably than people not in the class but who are similarly situated. See Brown v. Budz,
398 F.3d 904, 916 (7th Cir. 2005); Harris v. Greer, 750 F.2d 617, 618–19 (7th Cir. 1984).
A required threshold showing, then, is that a plaintiff was treated differently than others who are
similarly situated. Desris v. City of Kenosha, Wis., 687 F.2d 1117, 1119 (7th Cir. 1982).
In the First Amended Complaint, Plaintiff makes no such claim. He does not allege that
he was a member of a protected class. He does not allege that he was treated differently than
other similarly situated inmates. Instead, Plaintiff’s claim is rooted in the unfairness of the
decisions to deny him protective custody. An equal protection claim cannot proceed under this
theory. Accordingly, Count 3 shall be dismissed without prejudice against the defendants.
Count 4 – Intentional Infliction of Emotional Distress
Plaintiff’s state law claim for intentional infliction of emotional distress (Count 4) shall
proceed.

Where a district court has original jurisdiction over a civil action, it also has

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supplemental jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so long
as the state claims “derive from a common nucleus of operative fact” with the original federal
claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). “A loose factual
connection is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008)
(citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)). Plaintiff’s
state tort claim arises out of the same events giving rise to his federal claims. At this juncture,
the Court will exercise its supplemental jurisdiction and allow the state law claim for intentional
infliction of emotional distress to proceed against the defendants. Accordingly, Count 4 shall
receive further review against Defendants Butler, McCarty, Baldwin, Cowan, Spiller, and Doe
#1.
Count 5 – Conspiracy
The conspiracy claim (Count 5) shall be dismissed.

Plaintiff seeks to hold the

defendants liable for conspiracy to violate his rights under the Eighth and Fourteenth
Amendments. However, he offers no factual basis for this claim. In conclusory fashion, he
asserts that the defendants conspired against him. A mere conclusory allegation of a conspiracy
is not sufficient to support a claim; the claim requires some factual underpinning to survive
preliminary review under § 1915A. See Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)
(quoting Massey v. Johnson, 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

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understanding to achieve the conspiracy’s objectives.” Id. at 305 (quoting Hernandez v. Joliet
Police Dept., 197 F.3d 256, 263 (7th Cir. 1999)).
In the instant case, the fact that Defendants Butler, McCarty, Baldwin, Cowan, Spiller
and Doe #1) were involved in denying the November 2015 request for protective custody does
not, without more, establish a conspiracy.

The First Amended Complaint offers no other

allegations suggesting that these defendants shared a common objective of violating Plaintiff’s
rights under the Eighth and Fourteenth Amendments. The First Amended Complaint also does
not suggest that these defendants shared an understanding or agreement in this regard.
Absent these allegations, the Court cannot allow this claim to proceed. Therefore, Count 5 shall
be dismissed without prejudice against Defendants Butler, McCarty, Baldwin, Cowan, Spiller,
and Doe #1.
Summary
In summary, Plaintiff shall be allowed to proceed with his failure to protect claim
(Count 1) and intentional infliction of emotional distress claim (Count 4) against Defendants
Butler, McCarty, Baldwin, Cowan, Spiller, and Doe #1. His due process claim (Count 2), equal
protection claim (Counts 3) and conspiracy claim (Count 5) shall be dismissed against all of the
defendants without prejudice. Further, Defendants John Doe ##2-131 shall be dismissed without
prejudice because they are mentioned only in connection with the class action and not Plaintiff.
Any claim raised in the First Amended Complaint that is not addressed in this Order is
considered dismissed without prejudice.
Identification of Defendant John Doe #1
Plaintiff shall be allowed to proceed with Counts 1 and 4 against Defendant John Doe #1,
the unknown internal affairs officer who denied Plaintiff’s request for protective custody in

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November 2015. However, this individual must be identified with particularity before service of
the complaint can be made on him. Where a prisoner’s complaint states specific allegations
describing conduct of individual prison staff members sufficient to raise a constitutional claim
against the unknown defendants, the prisoner should have the opportunity to engage in limited
discovery in order to ascertain the identity of those individuals.

Rodriguez v. Plymouth

Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). In this case, guidelines for discovery aimed
at identifying Defendant John Doe #1 will be set by the United States Magistrate Judge, so that
Plaintiff can identify this party with particularity. All other defendants shall promptly respond to
discovery, formal or otherwise, aimed at identifying Defendant John Doe #1. Once identified,
Plaintiff shall file a motion to substitute the unknown internal affairs officer referred to in the
complaint with the specific name of that defendant.
Pending Motions
1.

Motion for Preliminary Injunction (Doc. 4)
Plaintiff filed a Motion for Preliminary Injunction (Doc. 4), which shall be referred to

United States Magistrate Judge Philip M. Frazier.
2.

Motion to Amend Complaint (Doc. 7)
Plaintiff filed a Motion to Amend Complaint (Doc. 7) on February 5, 2016, before the

Central District screened the original Complaint (Doc. 1) or transferred the case to this Court for
further review. Given the timing of Plaintiff’s request to file an amended complaint, it is hereby
GRANTED. See FED. R. CIV. P. 15(a)(1). The original Complaint (Doc. 1) is VOID.
Disposition
The Clerk is DIRECTED to re-file Document 7 as the “First Amended Complaint” in
CM/ECF.

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The Clerk is further DIRECTED to ADD Defendants KIMBERLY BUTLER,
JEANETTE COWAN, WILLIAM SPILLER, and JOHN DOE #1 (internal affairs officer)
as parties to this action in CM/ECF.
IT IS HEREBY ORDERED that Defendants JOHN DOE ##2-131 are DISMISSED
without prejudice because they are named only in connection with the class action; should
Plaintiff file a motion for class certification that is granted, he may seek their reinstatement as
parties to this action.
IT IS FURTHER ORDERED that COUNTS 2, 3, and 5 are DISMISSED without
prejudice for failure to state a claim upon which relief may be granted.
IT IS ALSO ORDERED that as to COUNTS 1 and 4, the Clerk of Court shall prepare
for Defendants McCARTY, BALDWIN, BUTLER, COWAN, and SPILLER: (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 First
Amended Complaint (Doc. 7), Motion for Preliminary Injunction (Doc. 4), 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.
Service shall not be made on Defendant John Doe #1 (unknown internal affairs officer)
until such time as Plaintiff files a motion for substitution to identify this individual with
specificity in the case caption and throughout the complaint. Plaintiff is ADVISED that it is

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Plaintiff’s responsibility to provide the Court with the name and service address for this
individual.
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 United States
Magistrate Judge Philip M. Frazier for further pre-trial proceedings, including consideration
of the Motion for Preliminary Injunction (Doc. 4) and discovery aimed at identifying Defendant
John Doe #1 (unknown internal affairs officer). Any motions or other papers filed after the date
of this Order that relate to this request for relief or seek leave to amend the First Amended
Complaint are also REFERRED to United States Magistrate Judge Frazier.

If it becomes

apparent that further action is necessary, the undersigned Judge should be notified immediately.

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Further, this entire matter shall be REFERRED to United States Magistrate Judge Frazier 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
the fact that his application to proceed in forma pauperis has been granted. See 28 U.S.C.
§ 1915(f)(2)(A).
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 4, 2016
s/ STACI M. YANDLE
U.S. District Judge

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