Custer v. Roeckeman et al
ORDER GRANTING 32 Motion ; DENYING 39 Motion for Reconsideration ; DENYING 40 Motion to Respond; DENYING 41 Motion for Leave to File. Clerk to mail service packet to Defendant Childress who is substituted for Defendant Childers. Signed by Magistrate Judge Donald G. Wilkerson on 10/18/16. (sgp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ZACHARY ROECKEMAN, TIMOTHY)
HEATHCOT, LT. BROWDER, MAJOR)
GIRSHAM, and C/O CHILDERS,
JOHN M. CUSTER,
Case No. 3:16-cv-573-NJR-DGW
WILKERSON, Magistrate Judge:
Now pending before the Court are the Motion to Find Out Information (Doc. 32), the
Motion to Reconsider (Doc. 39), the Motion to Respond (Doc. 40), and the Motion to Enter
Witness Affidavit (Doc. 41), filed by Plaintiff, John M. Custer.
In the first Motion (Doc. 32), Plaintiff states that he intended to sue Correctional Officer
Childress and not Correctional Officer Childers (whose true and full name is Shane Childers
according to the Answer (Doc. 33)). The Court construes this motion as one to amend the
Complaint and GRANTS the same. Plaintiff typically would be required to file an amended
pleading setting forth all of his claims. However, as it appears that Plaintiff is merely seeking to
amend in order to change the name of a Defendant, an amended complaint is not required. It is
hereby found that to the extent that Plaintiff has made any claim against “Childers” such a claim is
now made against “Childress;” and, by extension, Childers is TERMINATED from this matter.
In light of this ruling, the Counts as set forth by the Court in the July 18, 2016 Order are
modified as follows:
Count 1: Eighth Amendment excessive force claim against Defendant Heathcoat
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for the incident that occurred on July 31, 2015;
Count 2: Verbal harassment claim against Defendants Heathcoat, Browder,
Childress, and Grisham under the First and Eighth Amendments;
Count 3: Eighth Amendment deliberate indifference to serious medical needs
claim against Defendants Roeckeman, Heathcoat, Browder, and Childress for
failure to treat injuries that occurred on July 31, 2015; and
Count 6: State law claims for assault, battery, and negligence against Defendant
The Clerk of Court shall prepare for Defendant CHILDRESS: (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 the Defendant’s place of employment, the Big Muddy River Correctional Center. If
Defendant Childress 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 Mr. Childress, and the Court will require that Mr. Childress pay the full
costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
If Mr. Childress no longer can be found at the Big Muddy River Correctional Center, 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.
The remaining Motions, the Motion to Reconsider (Doc. 39), the Motion in Response
(Doc. 40), and the Motion to Enter Witness Affidavit (Doc. 41), are DENIED. Plaintiff is
directed to consult the Scheduling Order entered on October 6, 2016. If Defendants file a motion
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for summary judgment on the issue of exhaustion of administrative remedies, Plaintiff may raise
his arguments and facts in a response thereto. If they do not file such a motion, there is no need to
file such information with the Court. Plaintiff may submit any relevant evidence in support of a
motion for summary judgment on the merits, or in response thereto (again if one is filed). He
should not file such evidence with the Court unless it is related to a motion seeking relief or is in
response to a motion seeking relief. Finally, Plaintiff is again informed the Federal Rule of Civil
Procedure 7 does not require responses to an Answer or affirmative defenses and none should be
filed in this matter.
DATED: October 18, 2016
DONALD G. WILKERSON
United States Magistrate Judge
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