Ingersoll v. Phelps et al

Filing 29

ORDER GRANTING 26 Motion for Leave to File; MOOTING 26 Motion for Extension of Time; GRANTING 27 Motion to Substitute Party. Clerk to file amended complaint and effect service of process as set forth in Order. Signed by Magistrate Judge Donald G. Wilkerson on 12/1/2017. (sgp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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)
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Plaintiff,
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v.
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WARDEN OF MENARD CORRECTIONAL)
CENTER and OFFICER JOHN/JANE DOE, )
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Defendants.
JACOB LEE INGERSOLL,

Case No. 3:17-cv-46-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the Motion to Amend (Doc. 26) and the Motion to
Substitute party (Doc. 27) filed by Plaintiff, Jacob Lee Ingersoll. The Motions are GRANTED
IN PART.
Plaintiff originally sued unknown parties and was directed by the District Court to file a
motion to substitute parties, naming the individual defendant(s) he seeks to sue. Plaintiff has
complied with that Order and also has submitted a proposed amended complaint setting forth
claims against the newly named Defendants. The proposed amended complaint is substantially
similar to the original complaint. Defendant (Warden) has not objected. In light of the liberal
amendment standard contained in Federal Rule of Civil Procedure 15, the Clerk of Court is
DIRECTED to file Plaintiff’s amended complaint forthwith (attachment to Doc. 26).
Consistent with the February 7, 2017 Order referring this matter (Doc. 5), Plaintiff is
proceeding on only one count:
Count 1 - Eighth Amendment claim against Officers Todd Cowell and Bryan
Nortin for failing to protect Plaintiff from the inmate attack that occurred on April
17, 2015.

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Even though Plaintiff names former defendant Phelps and the same facts that were construed as
Counts 2, 3, and 4 in the amended complaint, that defendant and those claims were dismissed by
the February 7, 2017 Order. Plaintiff has not added any additional information that would
warrant the reinstatement of Phelps, Count 2, or Count 3, which were dismissed without
prejudice.1
IT IS FURHER ORDERED that the Clerk of Court shall prepare for Defendants TODD
COWELL and BRYAN NORTIN: (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 Menard Correctional Center. If Defendants fail 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 them, and the
Court will require that they pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.
If Defendants no longer can be found at the Menard Correctional Center, the employer
shall furnish the Clerk with the Defendants’ current work address, or, if not known, the
Defendants’ 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.
DATED: December 1, 2017

DONALD G. WILKERSON
United States Magistrate Judge
1

Count 4 was dismissed with prejudice.
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