Conway v. Doe et al

Filing 1

MEMORANDUM AND ORDER severing case no. 16-1393-SMY. Signed by Judge Staci M. Yandle on 2/2/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GREGORY CONWAY, #N83890,
Plaintiff,
vs.
LIEUTENANT GOODEN,
LIEUTENANT PEARCE,
LIEUTENANT JOHN DOE,
C/O JOHNSON,
C/O QURY,
C/O MYERS,
C/O ESTES,
C/O WALLA,
C/O MERACLE,
ALAN TRUMMEL,
HEALTH CARE ADMINISTRATOR
JOHN DOE, and
NURSE’S ASSISTANT JANE DOE,
Defendants.

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Case No. 16-cv-01393-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff

Gregory

Conway,

an

inmate

who

is

currently

incarcerated

at

Pinckneyville Correctional Center (“Pinckneyville”), brings this pro se action for alleged
violations of his constitutional rights under 42 U.S.C. § 1983. (Doc. 1). Plaintiff brings claims
against officials at both Western Illinois Correctional Center (“Western Illinois”) and
Pinckneyville under the First, Eighth, and Fourteenth Amendments. In connection with these
claims, Plaintiff names 9 known defendants and 3 unknown “Doe” defendants, one of which has
since been identified. Plaintiff requests monetary compensation and a declaratory judgment.
(Doc. 1, pp. 30-35). He has since moved for a temporary restraining order and a preliminary
injunction requiring him “to be kept separate from Defendants Lieutenant Pearce, Correctional
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Officer Walla, Correctional Officer Meracle [and] Correctional Officer Estes” and ordering
Plaintiff’s transfer to a different correctional institution “as soon as possible.” (Doc. 10, p. 1).
This case is now before the Court for a preliminary review of the Complaint pursuant to
28 U.S.C. § 1915A. Under Section 1915A, the Court is required to promptly screen prisoner
complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to
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).
As a part of screening, the Court is also allowed to sever unrelated claims against
different defendants into separate lawsuits. See George v. Smith, 507 F.3d 605, 607 (7th Cir.
2007). The practice of severance is important, “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. Id. Consistent with George, unrelated claims will
be severed into new cases, given new case numbers, and assessed separate filing fees.
The Complaint
Western Illinois
According to the Complaint, Plaintiff was sexually assaulted by a Western Illinois
corrections officer who is not identified as a defendant in this action. When Plaintiff reported the
assault, the Western Illinois staff “began engaging in acts of retaliation.” (Doc. 1, pp. 6-7).
Defendant Qury allegedly conducted an internal affairs investigation after Plaintiff was attacked
by his cellmate on April 13, 2015. (Doc. 1, pp. 7-8). During his interview with Plaintiff, Qury
called Plaintiff a troublemaker. Qury made it clear that he was referring to “all the grievances”
Plaintiff filed to complain about the corrections officer who allegedly sexually assaulted him and

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not the fighting for which Plaintiff was under investigation. Id. Qury asked Plaintiff: “Do you
really want to go down this road? Keep it up I guarantee your [sic] going to lose, because once
your [sic] labeled a trouble maker its [sic] all downhill from there.” (Doc. 1, p. 8).
Although Plaintiff and his cellmate were both punished for fighting, Plaintiff was given
90 days of segregation and a disciplinary transfer while his cellmate received only 30 days in
segregation for the same offense. Id.

Plaintiff claims this was an act of retaliation by Qury.

(Doc. 1, pp. 8-9). Plaintiff also claims that his medically prescribed eyeglasses were taken away
from him at Western Illinois “as retaliation,” and that he was forced to live in inhumane living
conditions for 38 days before being transferred. (Doc. 1, p. 9).
Plaintiff further alleges that while he was getting on the transfer bus at Western Illinois
on May 21, 2015, Defendant Gooden said to him: “I hope you don’t think your [sic] getting
away do you? Trouble-maker because something is waiting on you. . . . Grievances are not going
to help you.” (Doc. 1, pp. 9-10). Gooden then told Defendant Johnson: “This is inmate Conway
here[.] [H]e is a trouble-maker[.] [Y]ou guys show him how we deal with trouble makers.”
(Doc. 1, p. 10). In response, Johnson allegedly told Plaintiff that “we got a way of dealing with
trouble-makers at Pinckneyville.” (Doc. 1, p. 11). Plaintiff claims that these statements by
Gooden constitute acts of retaliation. (Doc. 1, p. 10).
Pinckneyville
After his arrival at Pinckneyville, “Plaintiff was written a disciplinary report for
Dangerous Disturbance and Disobeying a Direct Order by C/O Johnson.” (Doc. 1, p. 11).
Plaintiff claims that both of these charges were false and were issued in retaliation for Plaintiff’s
grievances and sexual assault allegations at Western Illinois. Id. When Plaintiff received the
disciplinary report on May 22, 2015, he sought to include several inmates as witnesses at his

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adjustment committee hearing by writing their names and inmate numbers on the relevant form.
(Doc. 1, pp. 12-13).
When he was called to the adjustment committee for a hearing on May 24, 2015, the
hearing officers, Defendants Lieutenant John Doe and Myers, refused to call the witnesses,
claiming it was too late. (Doc. 1, pp. 13-14). Lieutenant John Doe then allegedly said: “Their
[sic] right you are a trouble-maker. Guilty as charged now get out of here.” (Doc. 1, p. 14).
Plaintiff received 30 days in segregation for these allegedly fabricated charges. (Doc. 1, p. 12).
Plaintiff alleges these acts by Lieutenant John Doe and Myers were retaliatory and violated
Plaintiff’s due process rights. (Doc. 1, p. 14).
From May 28, 2015 until July 29, 2015, Plaintiff sent 8 request slips to Defendant
Brummel, an eye doctor, for his medically prescribed eyeglasses. (Doc. 1, pp. 15-16). Brummel
ignored the requests.

Plaintiff alleges that Brummel acted with deliberate indifference to

Plaintiff’s serious medical needs in violation of the Eighth Amendment when he disregarded
Plaintiff’s need for eyeglasses. (Doc. 1, p. 16).
On July 14, 2015, Plaintiff was allegedly attacked, punched in the head and face and
stabbed in the neck, chest, back, arm, and leg by his mentally unstable cellmate. Prior to the
attack, Plaintiff told Defendant Estes that his cellmate “was constantly threatening to kill” him.
(Doc. 1, pp. 16-17, 23). On the day of the attack, Plaintiff told Estes that his cellmate had
brandished an object that looked like a knife and told Plaintiff he planned to kill him that day.
Id.

In response, Estes mocked Plaintiff, saying “[t]he Trouble-Maker needs help, write a

grievance.” (Doc. 1, pp. 17-18).
Plaintiff also told Defendant Pearce of his cellmate’s threats and weapon.

Before

walking away, Pearce stated: “The big bad trouble-maker is not worried about this little crazy

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guy is [sic] you? You should’ve thought about that before you started slinging all that ink all
over those grievances.” (Doc. 1, p. 19). Plaintiff also claims he repeatedly told Defendants
Walla and Meracle that his cellmate was suffering from mental illness and “was constantly
threatening to kill the Plaintiff.” (Doc. 1, p. 21). According to Plaintiff, in response Walla
would typically say something akin to “we don’t help trouble-makers.” Id. Similarly, Meracle
would call him a trouble-maker and “make an obscene comment then walk away.” (Doc. 1, p.
22). Plaintiff claims these actions by Estes, Pearce, Walla and Meracle were taken in retaliation
and demonstrated deliberate indifference to Plaintiff’s personal health and safety. (Doc. 1, pp.
18-23).
Plaintiff was seen by Defendant Assistant Nurse Jane Doe on the day of the attack and
given some ointment for his stab wounds. (Doc. 1, pp. 23-24, 25-26). Assistant Nurse Jane Doe
then “tried to render medical services she [wa]s unqualified to give” and “never followed the
procedures required for the Plaintiff to receive the correct examination and treatment.” Plaintiff
maintains that this constitutes deliberate indifference. (Doc. 1, pp. 25-26).
Plaintiff was also informed that he would be called the next day to see a doctor. (Doc. 1,
p. 26). Despite his swollen face, blackened and bruised eyes, swollen lip, severe migraine, body
soreness, dizzy spells, “mental and physical trauma” and “constantly bleeding” stab wound,
Plaintiff was not seen by a doctor as promised. (Doc. 1, pp. 24, 26). Plaintiff submitted request
slips to see a doctor for 11 days straight after the attack and was denied all treatment. Id.
According to the Complaint, Defendant Pinckneyville Correctional Center Healthcare
Administrator John Doe exhibits deliberate indifference to prisoners’ serious medical needs by
allowing “systemic deficiencies in staffing or procedures” to make “unnecessary suffering
happen.” (Doc. 1, p. 25). Plaintiff also alleges that, under Health Care Administrator John Doe,

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“prisoners are unable to make their medical problems known to medical staff” and
that“[d]isorganization and dysfunction in a medical program can amount to deliberate
indifference if it prevents prisoners from receiving necessary care.” Id.
Plaintiff now claims that “[a]ll the defendants except for Eye Doctor Alan Trummel,
Nurses Assistant Jane Doe and Health Care Administrator John Doe referred to the Plaintiff as a
‘Trouble-Maker’ before they engaged in violations of the Plaintiff’s constitutional rights.” (Doc.
1, pp. 26-27). He was never referred to in this manner until Qury conducted the Internal Affairs
investigation into the fight Plaintiff had with his cellmate at Western Illinois. Id. This is
allegedly evidence that the defendants were “engaging in a conspiracy to inflict punishment on
[him] for being sexually assaulted . . . and writing grievances.”

Id.

This “campaign of

harassment” has allegedly “lasted for two years and continues to this day.” (Doc. 1, p. 28).
Discussion
Based on the allegations, the Court finds it convenient to divide the pro se Complaint into
the following enumerated claims. 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 does not constitute an opinion regarding their merit.
Count 1:

First Amendment retaliation claim against Qury for giving Plaintiff
90 days in segregation, at which time his eye glasses were taken
away, and giving him a disciplinary transfer in retaliation for
reporting his sexual assault by a Western Illinois corrections
officer and filing grievances to complain about the same;

Count 2:

Fourteenth Amendment equal protection claim against Qury for
giving Plaintiff 90 days in segregation and a disciplinary transfer
and giving his cellmate only 30 days in segregation for the same
rule violation in April 2015;

Count 3:

Eighth Amendment conditions of confinement claim against Qury
for subjecting Plaintiff to unconstitutional conditions of
confinement for 38 days before Plaintiff’s transfer from Western
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Illinois;
Count 4:

First Amendment retaliation claim against Gooden for threatening
Plaintiff and instructing Johnson to show Plaintiff how trouble
makers are handled;

Count 5:

First Amendment retaliation claims against Johnson, Myers, and
Lieutenant John Doe for Johnson filing false disciplinary charges
against Plaintiff on May 22, 2015 and Myers and Lieutenant John
Doe refusing to allow Plaintiff to call witnesses at the hearing on
those charges and ultimately giving Plaintiff 30 days in segregation
in retaliation for the sexual assault Plaintiff reported and
grievances he filed at Western Illinois;

Count 6:

Fourteenth Amendment due process claims against Johnson,
Myers, and Lieutenant John Doe for Johnson filing false
disciplinary charges against Plaintiff on May 22, 2015 and Myers
and Lieutenant John Doe refusing to allow Plaintiff to call
witnesses at the hearing on those charges and ultimately giving
Plaintiff 30 days in segregation;

Count 7:

Eighth Amendment failure to protect claim against Estes, Pearce,
Walla, and Meracle for failing to protect Plaintiff from an attack by
his cellmate on July 14, 2015 after Plaintiff told them that his
cellmate had threatened his life and brandished a knife-like
weapon at him;

Count 8:

First Amendment retaliation claim against Estes, Pearce, Walla,
and Meracle for failing to protect Plaintiff from his cellmate
because he reported a sexual assault at Western Illinois and filed
grievances;

Count 9:

Eighth Amendment deliberate indifference to medical needs claim
against Assistant Nurse Jane Doe for attempting to render medical
services she was unqualified to provide and failing to follow
proper examination procedures following Plaintiff’s attack by his
cellmate on July 14, 2015;

Count 10:

Eighth Amendment deliberate indifference to medical needs claim
against Health Care Administrator John Doe for allowing
disorganization and dysfunction in the medical program at
Pinckneyville that resulted in Plaintiff’s denial of medical care by a
doctor for the serious injuries he sustained during the cellmate
attack on July 14, 2015;

Count 11:

Conspiracy to violate Plaintiff’s constitutional rights under the
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First, Eighth, and Fourteenth Amendments in retaliation for his
reporting of a sexual assault at Western Illinois and writing
grievances;
Count 12:

Eighth Amendment deliberate indifference to medical needs claim
against Brummel for failing to provide Plaintiff with his medically
prescribed eyeglasses after Plaintiff requested them 8 separate
times between May 28, 2015 and July 29, 2015.

Plaintiff has brought several distinct sets of claims against different defendants. These
claims do not belong together in a single action. Therefore, the Court will exercise its discretion
and sever unrelated claims against different defendants into separate cases. George, 507 F.3d at
607. Plaintiff’s attempt to characterize the defendants’ conduct as a conspiracy (Count 11) does
not allow him to escape severance. Civil conspiracy claims are cognizable under 42 U.S.C. §
1983. See, e.g., Lewis v. Washington, 300 F.3d 829, 831 (7th Cir. 2002). However, a conspiracy
only exists if there is both “(1) an express or implied agreement among defendants to deprive
plaintiff of his or her constitutional rights and (2) actual deprivations of those rights in the form
of overt acts in furtherance of the agreement.” Scherer v. Balkema, 840 F.2d 437, 442 (7th Cir.
1988). Moreover, “[a] party may not cry ‘conspiracy’ and throw himself on the jury's mercy.”
Gramenos v. Jewel Cos., 797 F.2d 432, 436 (7th Cir. 1986).
Plaintiff maintains that “all of the named Defendants was [sic] actively engaging in a
conspiracy to inflict punishment on the Plaintiff” and “subjected the Plaintiff to a campaign of
harassment” because he reported being sexually assaulted and filed grievances to complain about
his mistreatment at Western Illinois. (Doc. 1, pp. 30-32). This allegation of a conspiracy is
conclusory. Plaintiff has failed to allege any facts suggesting that various defendants at
Pinckneyville were even aware of Plaintiff’s sexual assault allegations, the protected First
Amendment activity that Plaintiff alleges inspired the conspiracy to retaliate against him.
Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009) (citing Woodruff v. Mason, 542 F.3d 545,
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551 (7th Cir. 2008)). Further, the fact that officials at Western Illinois and Pinckneyville referred
to Plaintiff as a “trouble maker” is not sufficient proof of a conspiracy. See Vermillion v.
Levenhagen, 604 Fed. App’x 508, 512 (7th Cir. 2015) (lower court’s dismissal at threshold of
Plaintiff’s assertion that many corrections employees from two different facilities engaged in a
“broad conspiracy to retaliate” against Plaintiff “readily” agreed with by appeals court). The
alleged fact that Pearce made a comment to Plaintiff about previously written grievances in
conjunction with failing to protect him from his cellmate in July 2015 similarly is insufficient to
implicate him in a retaliatory conspiracy with Western Illinois corrections officers, who had last
seen Plaintiff in May 2015.
Moreover, because all Defendants in this case work for the Illinois Department of
Corrections, Plaintiff’s conspiracy claim runs afoul of the doctrine of intracorporate immunity,
which holds that, as a matter of law, the members of a single entity cannot conspire with one
another. See Wright v. Illinois Dep't of Children & Family Servs., 40 F.3d 1492, 1508 (7th Cir.
1994); Doe v. Board of Educ. of Hononegah Cmty. High Sch. Dist. No. 207, 833 F. Supp. 1366,
1381–82 (N.D. Ill. 1993).

Therefore, Count 11, constituting Plaintiff’s claim against all

defendants for a conspiratorial campaign of retaliation, will not be allowed to proceed and will
be dismissed.
Consistent with the George decision and Federal Rule of Civil Procedure 21, the Court
shall sever the claims from Western Illinois, Counts 1, 2, 3, and 4, into a separate action, Counts
5 and 6, relating to the allegedly false disciplinary tickets issued to Plaintiff and the related due
process issues, into another separate action and Count 12, relating to Brummel’s failure to
address Plaintiff’s medical need for prescription eye-glasses, into yet another action. These
separate actions, for Counts 1 through 4, Counts 5 and 6, and Count 12, will have newly assigned

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case numbers, and they shall be assessed filing fees.

The severed cases shall undergo

preliminary review pursuant to § 1915A after the new case numbers and judge assignments have
been made.
Counts 7 through 10 shall remain in this action. A separate order will be issued in this
case to review the merits of these claims. Plaintiff will be provided with a copy of the merits
order as soon as it is entered. No service shall be ordered on any defendant at this time.
To the extent Plaintiff sought to bring claims against individuals or entities not included
in the case caption, these individuals or entities will not be treated as defendants in this case, and
any claims against them should be considered dismissed without prejudice. See Myles v. United
States, 416 F.3d 551, 551–52 (7th Cir. 2005) (defendants must be “specif[ied] in the caption”).
Further, any claims not addressed herein should be considered dismissed without prejudice from
this action.
Temporary Restraining Order / Injunctive Relief
A temporary restraining order (“TRO”) is an order issued without notice to the party to
be enjoined that may last no more than 14 days. FED. R. CIV. P. 65(b)(2). A TRO may issue
without notice only if “specific facts in an affidavit or a verified complaint clearly show that
immediate or irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition.” FED. R. CIV. P. 65(b)(1)(A). Such injunctive relief is
warranted “to prevent a substantial risk of serious injury from ripening into actual harm.”
Farmer v. Brennan, 511 U.S. 825, 845 (1994).
A preliminary injunction is issued only after the adverse party is given notice and an
opportunity to oppose the motion.

See FED. R. CIV. P. 65(a)(1). “A plaintiff seeking a

preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to

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suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008) (citations omitted). See also Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir.
2013); Woods v. Buss, 496 F.3d 620, 622 (7th Cir. 2007); Cooper v. Salazar, 196 F.3d 809, 813
(7th Cir. 1999).
Plaintiff has filed a Motion for Temporary Restraining Order and Preliminary Injunction
(Doc. 10), requesting separation from Defendants Pearce, Walla, Meracle and Estes, as well as a
prison transfer. (Doc, 10, p. 1). In support of this request, Plaintiff describes conduct of the
defendants that occurred long ago or conduct that exceeds the scope of the Complaint. For
example, Plaintiff realleges his complaints regarding the retaliation taken against him at Western
Illinois for his allegations of sexual assault, Johnson’s fabricated disciplinary tickets, Myers and
Lieutenant John Doe’s due process violations, Pearce, Walla, Meracle and Estes’ failure to
protect him from his cellmate and Pinckneyville medical staff ignoring his medical needs. (Doc.
10-1, pp. 2-10). All of these events took place between April and July 2015.
He also complains of more recent incidents that are not included in the Complaint and/or
arise from the misconduct of nonparties. Plaintiff claims that he was moved 27 different times in
18 months (no specified defendant), that he was charged with fighting when he was punched in
the face by another inmate (no specified defendant) and that he was charged with assault and
placed in segregation by Lieutenant Baker (a non-party) in December 2016 after pressing the
panic button when he received threats from another inmate. (Doc 10-1, pp. 10-12). He also
alleges that Pearce “resulted to torture” when he was present at Plaintiff’s interview with an
internal affairs officer on January 1, 2017 and told Plaintiff to sign a declaration prepared by the
internal affairs officer that plaintiff alleges had “something totally different from what [Plaintiff]

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told him.” (Doc. 10-1, pp. 13-14). In this altercation, Plaintiff claims the internal affairs officer
also yelled at him to sign the declaration and hand-cuffed him very tightly, threatening to break
his wrist. (Doc. 10-1, pp. 14-15). In his motion, Plaintiff claims that “all the acts of retaliation
and the harassment” against him have caused him to “slip back into depression” that mental
health worker Ms. Mason (a non-party) allegedly told him on January 15, 2017 she could not
help him with. (Doc. 10-1, pp. 15-16).
Plaintiff has not demonstrated that he faces any immediate or irreparable injury or loss
that warrants this drastic form of relief. See FED. R. CIV. P. 65(b)(1)(A). Further, the Court
cannot conclude that Plaintiff is likely to succeed on the merits of any claims, as most of the
complaints in his motion arise from incidents that are not addressed in the Complaint, and the
Court will not allow Plaintiff’s motion to amend his Complaint as it does not accept piecemeal
amendments to a complaint. Further, all of the complaints in the motion that took place within
the past year are not addressed in the Complaint, and only one of them, the internal affairs
altercation, involves an actual defendant in this case (Pearce). If Plaintiff intends to amend his
Complaint to include his allegations against this defendant, as appears to be his intent, he has
leave to do so in this case (No. 16-cv-1393-SMY), though he must comply with the deadline and
instructions set forth in the below disposition.
Plaintiff has put forth insufficient allegations in support of his request for injunctive
relief. Should his situation change during the pending action, necessitating emergency
intervention by the Court, he may file a new motion for TRO and/or preliminary injunction
pursuant to Rule 65(a)-(b). At this time, the motion shall be denied without prejudice.

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Pending Motions
Plaintiff has filed a Motion for Recruitment of Counsel (Doc. 3), which is hereby
DENIED without prejudice. There is no constitutional or statutory right to counsel in federal
civil cases. Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); see also Johnson v.
Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006). Nevertheless, the district court has discretion
under 28 U.S.C. § 1915(e)(1) to recruit counsel for an indigent litigant. Ray v. Wexford Health
Sources, Inc., 706 F.3d 864, 866–67 (7th Cir. 2013).
When a pro se litigant submits a request for assistance of counsel, the Court must first
consider whether the indigent plaintiff has made reasonable attempts to secure counsel on his
own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v. Mote, 503 F.3d 647,
654 (7th Cir. 2007). If so, the Court must examine “whether the difficulty of the case—factually
and legally—exceeds the particular plaintiff’s capacity as a layperson to coherently present it.”
Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). “The question ... is whether the
plaintiff appears competent to litigate his own claims, given their degree of difficulty, and this
includes the tasks that normally attend litigation: evidence gathering, preparing and responding
to motions and other court filings, and trial.” Pruitt, 503 F.3d at 655. The Court also considers
such factors as the plaintiff’s “literacy, communication skills, education level, and litigation
experience.” Id.
Here, Plaintiff alleges that he “mailed letters to several law firms” but that his requests
for assistance were all denied. (Doc. 3, p. 1). However, he did not attach copies of these letters
nor did he attach the responses he claims to have received from the unnamed law firms.
Therefore, this Court has little information with which to determine whether Plaintiff’s efforts to
obtain counsel were indeed reasonable. Regardless of whether his efforts were reasonable,

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Plaintiff has demonstrated his ability to proceed pro se at this time. He has articulated his claims
well, is a college graduate, and has not alleged that he has any language or other barriers to
litigating his claims. (Doc. 3, p. 2). Though this Court is denying Plaintiff’s motion (Doc. 3) at
this time, it will remain open to the appointment of counsel in this case if the need arises in the
future.
Plaintiff has filed a Motion for Service of Process at Government Expense (Doc. 4),
which is hereby DENIED as moot. Because Plaintiff has been granted leave to proceed in forma
pauperis, the Court will order service of this suit as a matter of course on all defendants who
remain in this action following preliminary review of this matter pursuant to 28 U.S.C. § 1915A.
Plaintiff has filed a Motion to Amend his Complaint (Doc. 6) that is, in effect, a motion
to substitute the unidentified defendant Nurse Assistant Jane Doe for Nurse Assistant Kimberly
Richardson. Plaintiff’s Motion to Amend to substitute these parties is GRANTED. The Clerk is
DIRECTED to substitute Kimberly Richardson for defendant Nurse Assistant Jane Doe in this
case.
Plaintiff’s Motion for a Temporary Restraining Order (Doc. 10) is hereby DENIED
without prejudice for the reasons articulated above.
Disposition
IT IS HEREBY ORDERED that COUNTS 1, 2, 3, and 4, which are unrelated to the
other claims in this action, are SEVERED into a new case against QURY (Counts 1 through 3)
and GOODEN (Count 4).
IT IS FURTHER ORDERED that COUNTS 5 and 6, which are unrelated to the other
claims in this action, are SEVERED into a new case against JOHNSON, MYERS, and
LIEUTENANT JOHN DOE.

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IT IS FURTHER ORDERED that COUNT 11 against all defendants is DISMISSED
with prejudice as frivolous and/or for failure to state a claim upon which relief can be granted.
IT IS FURTHER ORDERED that COUNT 12, which is unrelated to the other claims
in this action, is SEVERED into a new case against BRUMMEL.
The claims in the newly severed cases shall be subject to screening pursuant to 28 U.S.C.
§ 1915A after the new case number and judge assignment is made. In the new case, the Clerk is
DIRECTED to file the following documents:
•
•
•

This Memorandum and Order;
The Complaint (Doc. 1); and
Plaintiff’s motion to proceed in forma pauperis (Doc. 2).
Plaintiff will be responsible for an additional $350 filing fee in each newly severed

case. 1 No service shall be ordered in the severed cases until the § 1915A review is completed.
IT IS FURTHER ORDERED that the only claims remaining in this action are Counts
7

through

10

against

ESTES,

PEARCE,

WALLA,

MERACLE,

KIMBERLY

RICHARDSON (substituted for Assistant Nurse Jane Doe), and HEALTH CARE
ADMINISTRATOR JOHN DOE.
IT IS FURTHER ORDERED that Defendants QURY, GOODEN, JOHNSON,
MYERS, LIEUTENANT JOHN DOE, and BRUMMEL are TERMINATED from this action
with prejudice.
IT IS FURTHER ORDERED that Plaintiff has leave to amend his Complaint in this
action, if he wishes to assert any new facts or claims against ESTES, PEARCE, WALLA,
MERACLE, KIMBERLY RICHARDSON (substituted for Assistant Nurse Jane Doe), and
HEALTH CARE ADMINISTRATOR JOHN DOE. Within 28 days of this Order (March 2,
1

Pursuant to 28 U.S.C. § 1914, effective May 1, 2013, an additional $50.00 administrative fee is also to
be assessed in all civil actions, unless pauper status is granted.
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2017), Plaintiff may file a First Amended Complaint. He must list this case number, i.e., No. 16cv-01393-SMY, on the first page of each pleading and label the document “First Amended
Complaint.” Plaintiff is strongly encouraged to use this District’s standard civil rights complaint
form when preparing his First Amended Complaint. Further, Plaintiff should only bring related
claims against common defendants. Any claims found to be unrelated to one another and/or
against different groups of defendants will be severed into one or more new cases at the Court’s
discretion, and Plaintiff will be assessed a separate filing fee in each case. If Plaintiff chooses
not to file a First Amended Complaint or fails to comply with the deadline and/or instructions set
forth in this Order, the Court will screen the remaining counts in the original Complaint pursuant
to 28 U.S.C. § 1915A after the expiration of this deadline. The Clerk is DIRECTED to provide
Plaintiff with a blank civil rights complaint form for use in preparing the First Amended
Complaint.
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 2, 2017

s/ STACI M. YANDLE
U.S. District Judge

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