Buck v. Young et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge David R. Herndon on 4/11/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WILLIAM BUCK,
No. R-21689,
Plaintiff,

–270-DRH

v.
SGT. YOUNG,
C/O SLAVENS,
LIEUTENANT CALLAIS,
WITHOFF,
NURSE PAM,
NURSE TRIPP,
NURSE JILL,
LARISSA WANDRO,
SYLVIA BUTLER,
MS. PAPPAS,
MS. MEYERS,
MR. WEATHERFORD,
GAIL WALLS,
Defendants.

MEMORANDUM AND ORDER
HERNDON
Plaintiff William

Buck, an inmate

in Menard

Correctional Center

(“Menard”), brings this action for deprivations of his constitutional rights
pursuant to 42 U.S.C. § 1983.

Plaintiff contends officials at Menard subjected

him to unconstitutional conditions of confinement while he was on suicide watch.
Plaintiff also alleges that he was the victim of excessive force on two occasions
during his suicide watch and was denied appropriate medical care with respect to

injuries stemming from the excessive force incidents. In connection with these
claims, Plaintiff sues Sgt. Young (Correctional Officer), C/O Slavens (Correctional
Officer), Lieutenant Callais (Correctional Officer), Withoff (Correctional Officer),
Nurse Pam (Nurse), Nurse Tripp (Nurse), Nurse Jill (Nurse), Larissa Wandro
(Grievance Officer), Sylvia Butler (Physician), Ms. Pappas (Mental Health
Professional), Ms. Meyers (Mental Health Professional), Mr. Weatherford (Mental
Health Professional), Gail Walls (Healthcare Administrator).

According to the

Complaint, Plaintiff sues all defendants in their individual and official capacities.
Plaintiff seeks monetary damage and injunctive relief.
This case is now before the Court for a preliminary review of the Complaint
pursuant to 28 U.S.C. § 1915A, which provides:
(a)
– The court shall review, before docketing, if feasible
or, in any event, as soon as practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b)
– On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim
on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Frivolousness is an

objective standard that refers to a claim that any reasonable person would find
meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action
fails to state a claim upon which relief can be granted if it does not plead “enough

facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

The claim of entitlement to relief must

cross “the line between possibility and plausibility.” Id. at 557. At this juncture,
the factual allegations of the pro se complaint are to be liberally construed. See
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Complaint and any supporting exhibits, the
Court finds it appropriate to exercise its authority under § 1915A; portions of this
action are subject to summary dismissal.

Plaintiff was on suicide watch between October 27, 2016 and December 7,
2016. (Doc. 1, pp. 9-11). During his suicide watch, Plaintiff was initially housed
in a cell in the Healthcare Unit. (Doc. 1, p. 9). The first transfer occurred on
November 12, 2016, when Plaintiff was transferred to cell number 507 in North 2.
(Doc. 1, p. 10). Plaintiff was subsequently transferred twice. (Doc. 1, pp. 9-11).
The second and final transfer occurred on November 23, 2016, when Plaintiff was
transferred to cell number 217 in North 2.

(Doc. 1, p. 11).

During his

confinement in these cells, Plaintiff was subject to the following conditions: (1) he
had only a suicide vest and blanket in his cell and was not permitted to clean or
replace them, even after they were soiled; (2) he was not permitted to shower; (3)
he was not allowed to have a toothbrush or toothpaste and his mouth became
infected; (4) he was not allowed any items to clean himself; (5) in each cell the
walls and flooring were covered in urine, feces, and/or blood; (6) in each cell, the

mattress provided was covered in urine, feces, and/or blood; (7) the cells were not
cleaned and Plaintiff was not allowed any cleaning supplies; (8) Plaintiff could not
clean himself after urinating or defecating and ate finger food with soiled fingers;
(9) the lights in Plaintiff’s cell were turned on at all times, depriving Plaintiff of
sleep; (10) Plaintiff was bitten by bugs; and (11) Plaintiff developed MRSA. (Doc.
1, pp. 9-11).
The Complaint indicates that Pappas (Doc. 1, p. 10, ¶ 8-9), Meyers (Doc. 1,
p. 11 ¶ 16-17) and Weatherford (Doc. 1, p. 11, ¶ 22) intentionally had Plaintiff
placed in unsanitary conditions. Additionally, Plaintiff alleges that Weatherford
(Doc. 1, p. 11, ¶ 18) Pappas (Doc. 1, p. 11, ¶ 18), Meyers (Doc. 1, p. 11, ¶ 18), and
Withoff (Doc. 1, p. 14) were aware of these unsanitary conditions, and failed to
take any action to assist Plaintiff.
Plaintiff also alleges that while he was in solitary confinement, he was
subjected to excessive force on two occasions. The first excessive force incident
occurred on November 20, 2016, when Plaintiff was in cell number 507 in North
2.

(Doc. 1, p. 12). According to Plaintiff, he asked to speak with a lieutenant.

(Doc. 1, p. 12). Slavens and Callais responded to his request. (Doc. 1, p. 12). At
the time, Plaintiff’s arm was in the opened chuckhole. (Doc. 1, p. 12).

Slavens

told Plaintiff he was going to break his arm while it was in the chuckhole. (Doc. 1,
p. 12). Callais then ordered Slavens to go ahead and break Plaintiff’s arm. (Doc.
1, p. 12). Slavens grabbed Plaintiff’s right thumb and began to twist and shove
Plaintiff’s arm with all of his body weight. (Doc. 1, p. 12). Slavens then shoved

Plaintiff into rusty metal in Plaintiff’s cell. (Doc. 1, p. 12). Plaintiff’s knee was
punctured and there was a gash in his left foot.

(Doc. 1, p. 12).

Plaintiff

experienced severe pain in his foot, knee, shoulder, wrist, and thumb. (Doc. 1, p.
12).
Slavens and Callais refused Plaintiff’s initial requests for medical
assistance. (Doc. 1, p. 12). Although Callais subsequently returned with a nurse,
Pam, she did not provide appropriate medical care. (Doc. 1, p. 13). Pam told
Plaintiff he deserved worse and did nothing more than throw two bandages into
Plaintiff’s cell. (Doc. 1, p. 13). The following morning, another nurse, Jill and
Young ignored Plaintiff’s requests for medical treatment. (Doc. 1, p. 13).
The second excessive force incident took place on the afternoon of
November 21, 2016. According to Plaintiff, Young (who was aware of Plaintiff’s
prior injuries) approached Plaintiff’s cell. (Doc. 1, p. 13). Then, without cause,
Young pepper sprayed Plaintiff and twisted Plaintiff’s already injured arm, causing
severe pain. (Doc. 1, p. 13). At some point during the assault, Withoff appeared
and cuffed Plaintiff through the chuckhole. (Doc. 1, p. 13). Plaintiff was then
escorted, with his arms cuffed behind his back and without any clothing through
the gallery to the HCU. (Doc. 1, p. 13). Plaintiff was taken to be examined by
another nurse, Anna. (Doc. 1, p. 13).

Anna performed a cursory exam and then

left without providing treatment. (Doc. 1, p. 14). Plaintiff contends his shoulders,
wrists, and thumbs felt broken, he was bleeding, and in extreme pain. (Doc. 1, p.

14). Plaintiff was then returned to his cell without receiving any treatment. (Doc.
1, p. 14).
On November 22, 2016, Plaintiff was seen by another nurse, Tripp. (Doc.
1, p. 14). Plaintiff was told he was lucky to see her at all. (Doc. 1, p. 14). Tripp
examined Plaintiff but did not provide any medical care. (Doc. 1, p. 14). Plaintiff
told Meyers about the assault but, other than contacting a psychiatrist, she did
not provide him with any assistance. (Doc. 1, p. 14).
On November 23, 2016, Plaintiff was examined by Moldenhauser (not a
named Defendant) in the presence of several corrections officers. (Doc. 1, p. 14).
Moldenhauser ordered x-rays for Plaintiff. But informed Plaintiff he did not want
trouble with the guards and was going to indicate that Plaintiff had scrapes as
opposed to a puncture and gash. (Doc. 1, p. 14). Moldenhauser did not receive
an x-ray until December 19, 2016, after he filed an emergency grievance. (Doc. 1,
p. 14). 1 Plaintiff does not provide any information with regard to the medical
assessment of his x-rays. Aside from the bandages he received on the day of the
initial assault and the subsequent x-ray, Plaintiff has not received any treatment
for his injuries. (Doc. 1, p. 15). Plaintiff continues to suffer from severe pain.
(Doc. 1, p. 15). In addition, he has trouble with mobility and with lifting things.
(Doc. 1, p. 15).
Plaintiff contends that he has received inadequate treatment as a result of
policies implemented by Walls, a healthcare administrator.

1

(Doc. 1, p. 15).

The related Grievance Officer’s Report attached to the Complaint indicates that x-rays were not
taken until December 19, 2016 because Plaintiff was on crisis watch. (Doc. 1-1, p. 4).

Additionally, Plaintiff contends that Wandro, a grievance officer, failed to properly
investigate grievances and otherwise mishandled his grievances relating to the
alleged constitutional violations. (Doc. 1, p. 15). 2
With respect to Butler, Plaintiff merely alleges that (1) he spoke to Butler
about his treatment on November 4, 2016 (Doc. 1, p. 10, ¶ 7) and (2) he preferred
to speak to Butler and constantly asked staff members to allow him to speak to
Butler, but the staff refused (Doc. 1, p. 10, ¶ 16, 18).
In connection with these claims, Plaintiff sues all Defendants in their
individual and official capacities.

(Doc. 1, p. 16).

Plaintiff seeks monetary

damages. (Doc. 1, p. 16). Plaintiff also seeks injunctive relief. (Doc. 1, p. 17).
Specifically, Plaintiff seeks further treatment for his injuries, an MRI, and an
order directing Menard to adopt or refrain from enforcing certain policies
pertaining to prisoner medical care. (Doc. 1, p. 17).

As a preliminary matter, it is necessary to clarify who the defendants are in
the instant action. The body of the Complaint raises several allegations with
regard to a physician identified as “Moldenhauser.”

Moldenhauser is not

identified as a defendant in the caption of the Complaint or in section of the
Complaint that identifies the parties. Because this individual is not listed in the
caption by name or by Doe designation, he will not be treated as a defendant in

2

The grievances attached to the Complaint do not indicate that Wandro “turned a blind eye” to
Plaintiff’s complaints. The grievances indicate Wandro conducted investigations of Plaintiff’s
grievances and made recommendations in accordance therewith. (Doc. 1-1).

this case, and any claims against him should be considered dismissed without
prejudice. See FED. R. CIV. P. 10(a) (noting that the title of the complaint “must
name all the parties”); Myles v. United States, 416 F.3d 551, 551–52 (7th Cir.
2005) (to be properly considered a party a defendant must be “specif[ied] in the
caption”); Id. at 553 (“[It is] unacceptable for a court to add litigants on its own
motion. Selecting defendants is a task for the plaintiff, not the judge.”).
Turning to the substantive allegations in Plaintiff’s Complaint, the Court
finds it convenient to divide the pro se action into the following counts. Any other
claim that is mentioned in the Complaint but not addressed in this Order should
be considered dismissed without prejudice as inadequately pled under the
Twombly pleading standard.
1- Defendants subjected Plaintiff to unconstitutional conditions of
confinement while he was on suicide watch between October 27, 2016
and December 12, 2016, in violation of the Eighth Amendment.
2 - Eighth Amendment claim against Clavens and Callais for using
excessive force against Plaintiff on or about November 20, 2016.
3 - Eighth Amendment claim against Young for using excessive force
against Plaintiff on or about November 21, 2016.
4 - Eighth Amendment deliberate indifference claim to serious medical
needs against Defendants for refusing to treat and/or inadequately
treating Plaintiff’s injuries related to the excessive force incidents.
- Eighth Amendment deliberate indifference claim against Walls for
instituting policies that led to inadequate medical care and delayed
medical care.
- Fourteenth Amendment due process claim against Wandro for denying
Plaintiff’s grievance pertaining to the excessive force incidents and his
conditions of confinement during suicide watch.

Plaintiff alleges that between October 27, 2016 and December 12, 2016,
while on suicide watch, he was forced to live in cells that were smeared with
someone else's blood and/or smeared with urine and feces.

During this time,

Plaintiff was not allowed to leave his cells, his cells were not cleaned and he was
not given anything to clean them, he was not permitted to shower and was unable
to clean himself, he was forced to eat finger foods with soiled hands, and the
lights in his cell remained on at all times.
Plaintiff’s allegations, taken as true, satisfy the objective prong of the
Eighth Amendment inquiry. See Vinning–El v. Long, 482 F.3d 923, 923–25 (7th
Cir.2007) (reversing summary judgment for defendant where prisoner was
deprived of basic sanitation items and incarcerated for six days in a cell in which
blood and feces were smeared the walls, water covered the floor, and the sink and
toilet did not work); Johnson v. Pelker, 891 F.2d 136, 139–40 (7th Cir.1989)
(prisoner stated an Eighth Amendment claim where his requests for cleaning
supplies were ignored while he was incarcerated for three days in a cell that was
smeared with human feces and was without running water); see also DeSpain v.
Uphoff, 264 F.3d 965, 974 (10th Cir. 2001) ( “Exposure to human waste, like few
other conditions of confinement, evokes both the health concerns emphasized in
Farmer and the more general standards of dignity embodied in the Eighth
Amendment.”).

With respect to the subjective prong, Plaintiff’s allegations, indicate that
Pappas (Doc. 1, p. 10, ¶ 8-9), Meyers (Doc. 1, p. 11 ¶ 16-17) and Weatherford
(Doc. 1, p. 11, ¶ 22) intentionally had Plaintiff placed in unsanitary conditions.
Additionally, Plaintiff alleges that Weatherford (Doc. 1, p. 11, ¶ 18) Pappas (Doc.
1, p. 11, ¶ 18), Meyers (Doc. 1, p. 11, ¶ 18), and Withoff (Doc. 1, p. 14) were
aware of these unsanitary conditions, and failed to take any action to assist
Plaintiff. Giving Plaintiff the inferences to which he is entitled at this stage, he has
stated a claim against Weatherford, Pappas, Withoff, and Meyers. Plaintiff has not
alleged specific facts demonstrating personal involvement as to the remaining
Defendants.
Accordingly, Count 1 shall receive further review as to Weatherford,
Pappas, Withoff, and Meyers. Count 1 shall be dismissed without prejudice as to
the remaining Defendants.

A prison official inflicts cruel and unusual punishment on an inmate, in
violation of the Eighth Amendment, when the official intentionally uses excessive
force against the inmate without penological justification. See Wilkins v. Gaddy,
559 U.S. 34 (2010); Hudson v. McMillian, 503 U.S. 1 (1992). In order to prevail
on an excessive force claim, an inmate must demonstrate that the force used by
the defendant was not applied in a good-faith effort to maintain or restore
discipline, but, rather, was applied maliciously and sadistically to cause harm.
See Hudson, 503 U.S. at 7.

However, not every malicious touch by a prison

official gives rise to a cause of action under the Constitution. Unless the physical
force is “repugnant to the conscience of mankind”, force that is de minimis is not
actionable. Id. at 9–10 (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986))
(internal quotations omitted).
Here, Plaintiff alleges that Slavens, Callais, and Young used excessive force
against him without any apparent penological justification. (Doc. 1, pp. 12-13)
Accepting Plaintiff's allegations as true, as the Court must do at this preliminary
stage, the Court finds that Plaintiff has articulated colorable excessive force claims
against Slavens and Callais (Count 2) and Young (Count 3).

Prison officials and medical personnel violate the Eighth Amendment when
they act with deliberate indifference to an inmate's serious medical or mental
health needs. Rasho v. Elyea, ––– F.3d ––––, 2017 WL 892500 (7th Cir. March 7,
2017) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chatham v. Davis, 839
F.3d 679, 684 (7th Cir. 2016)).

In order to state a claim, a plaintiff must

demonstrate that he suffered from a serious medical or mental health need (i.e.,
objective standard) and the prison official responded with deliberate indifference
(i.e., subjective standard).

Petties v. Carter, 836 F.3d 722, 727-28 (7th Cir.

2016) (citing Farmer, 511 U.S. at 834; Berry v. Peterman, 604 F.3d 435, 440
(7th Cir. 2010)).
Plaintiff’s physical injuries following the excessive force incidents satisfy the
objective component for this claim. Plaintiff describes a puncture to his left knee

and a gash in his left foot, both of which were bleeding. He also describes damage
to his knee, shoulder, wrist, and thumb that caused severe pain. Plaintiff further
alleges that he believed his shoulder, wrist, and/or thumb were broken.
Plaintiff’s allegations suggest that Callais, Slavens, Pam, Jill, Young, Tripp,
and Meyers, responded to Plaintiff’s injuries and complaints with deliberate
indifference.

Plaintiff alleges that, immediately following the excessive force

incident on November 20, 2016, Callais and Slavens initially refused to provide
him with medical treatment. (Doc. 1, p. 13, ¶ 9). Subsequently, Callais returned
with Pam (a nurse). (Doc. 1, p. 13, ¶ 11). Pam told Plaintiff he “should have
gotten worse” and threw two bandages into Plaintiff’s cell. (Doc. 1, p. 13, ¶ 12).
Plaintiff did not receive any further medical care that night.
On the morning of November 21, 2016, Jill and Young refused to provide
Plaintiff with medical assistance. (Doc. 1, p. 13, ¶ 14-15). In fact, Young returned
to Plaintiff’s cell in the afternoon and initiated the second excessive force incident
against Plaintiff. (Doc. 1, p. 13, ¶ 16-18). Thereafter, Plaintiff was seen by Anna
and Tripp.

(Doc. 1, p. 14, ¶ 21-27).

Plaintiff’s alleges that Anna and Tripp

observed Plaintiff’s injuries but refused to provide medical care and/or provided
inadequate medical care.

Id.

Plaintiff asserts he spoke to Meyers about the

assault but other than contacting a psychiatrist, she did not seek any medical
assistance for Plaintiff. (Doc. 1, p. 14, ¶ 24).
With respect to Count 4, Plaintiff’s Complaint does not state a claim as to
Withoff (Plaintiff alleges that Withoff took Plaintiff for medical treatment following

the second excessive force incident), Butler (the allegations as to Butler do not
speak to this claim), Wandro (the allegations as to Wandro do not speak to this
claim), Pappas (the allegations as to Pappas to not speak to this claim),
Weatherford (the allegations as to Weatherford do not speak to this claim), and
Walls (to the extent that Walls’ policies amount to deliberate indifference, they are
addressed in Count 5).

Accordingly, Withoff, Wandro, Butler, Pappas,

Weatherford, and Walls, shall be dismissed without prejudice as to Count 4.

To recover damages for his claim, Plaintiff must establish that Walls was
personally responsible for the deprivation of a constitutional right. See Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).

While an official cannot be

personally liable under a theory of respondeat superior, “ ‘[a]n official satisfies the
personal responsibility requirement of section 1983 ... if the conduct causing the
constitutional deprivation occurs at [his] direction or with [his] knowledge and
consent.’ ” Id. (quoting Smith v. Rowe, 761 F.2d 360, 369 (7th Cir. 1985)).
Furthermore, Plaintiff must allege that there was “an official policy or custom that
caused the injury.” Perkins v. Lawson, 312 F.3d 872, 875 (7th Cir. 2002).
Plaintiff contends he was denied appropriate care because of several
policies implemented by Walls. According to Plaintiff, Walls has implemented the
following policies: (1) allowing correctional officers to remain in the examination
rooms during medical evaluations; (2) instructing medical staff to ignore sick call
requests that are controversial (i.e. injuries caused by correctional officers); and

(3) implementing a sick call system (placing sick call request slips in a box rather
than providing a signup sheet) that allows medical staff to destroy undesirable
sick call slips without detection. (Doc. 1, p. 15). Plaintiff alleges that because his
requests for treatment were “controversial” (i.e. involved injuries caused by staff),
his requests were ignored and/or he received inadequate care.
At this juncture, Plaintiff has provided sufficient factual information to
allow this claim to proceed beyond screening for further development of the
factual record.

The fact that Wandro denied Plaintiff's grievance gives rise to no
independent claim under the Due Process Clause of the Fourteenth Amendment.
See Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations
omitted). It is well-settled that the mishandling of grievances “by persons who
otherwise did not cause or participate in the underlying conduct states no claim.”
Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011); Grieveson v. Anderson,
538 F.3d 763, 772 n. 3 (7th Cir. 2008); George v. Smith, 507 F.3d 605, 609 (7th
Cir. 2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). This is
because “a state's inmate grievance procedures do not give rise to a liberty interest
protected by the Due Process Clause.” Antonelli, 81 F.3d at 1430.

The

Constitution requires no procedure. Id. For this reason, the failure of state prison
officials to follow their own procedures does not, by itself, violate the Constitution.
Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681

F.2d 1091, 1100-01 (7th Cir. 1982). On this basis, Count 6 shall be dismissed
with prejudice against Wandro for failure to state a claim upon which relief may
be granted.

As previously noted, Plaintiff is seeking injunctive relief.

The Court

construes Plaintiff’s request for injunctive relief as a request for relief at the close
of the case. Should Plaintiff wish to request a TRO or a preliminary injunction,
he should file a separate motion pursuant to Rule 65(a) or (b) indicating the exact
form of relief he seeks, the reasons why he seeks said relief, and the factual
allegations supporting his request. He may do so at any time during the pending
action.
With respect to Plaintiff’s request for injunctive relief, the warden is the
appropriate party. Gonzales v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011).
Accordingly, the Clerk will be directed to add Jacqueline Lashbrook, the warden
of Menard, in her official capacity, for purposes of carrying out any injunctive
relief that is ordered. As to all other Defendants, to the extent that any claims
have been allowed to proceed, they go forward against these Defendants in their
individual capacities only.

Plaintiff’s Motion for Appointment of Counsel (Doc. 3) shall be REFERRED
to a United States Magistrate Judge for a decision.

The Clerk is DIRECTED to TERMINATE WANDRO and BUTLER as
parties in CM/ECF.
The Clerk is DIRECTED to add JACQUELINE LASHBROOK, the warden
of Menard, in her official capacity, for purposes of carrying out any injunctive
relief that is ordered.
IT IS HEREBY ORDERED that COUNT 1 shall receive further review as to
WITHOFF, PAPPAS, MEYERS, AND WEATHERFORD in their individual
capacities only. COUNT 1 is DISMISSED without prejudice as to YOUNG,
SLAVENS, CALLAIS, PAM, TRIPP, JILL, WANDRO, BUTLER, AND WALLS
for failure to state a claim.
IT IS FURTHER ORDERED that COUNT 2 shall receive further review as
to SLAVENS and CALLAIS, the only Defendants named in connection with this
claim, in their individual capacities only.
IT IS FURTHER ORDERED that COUNT 3 shall proceed as to YOUNG,
the only Defendant named in connection with this claim, in his individual capacity
only.
IT IS FURTHER ORDERED that COUNT 4 shall proceed as to YOUNG,
SLAVENS, CALLAIS, PAM, TRIPP, JILL, and MEYERS in their individual
capacities only.

COUNT 4 is DISMISSED without prejudice as to WITHOFF,

WANDRO, BUTLER, PAPPAS, WEATHERFORD, and WALLS.

IT IS FURTHER ORDERED that

shall proceed as to WALLS,

the only Defendant named in connection with this claim, in her individual
capacity only.
IT IS FURTHER ORDERED that COUNT 6 is DISMISSED with prejudice
as to WANDRO, the only Defendant named in connection with this claim.
IT IS HEREBY ORDERED that as to COUNTs 1

the Clerk

of the Court shall prepare for Defendants YOUNG, SLAVENS, CALLAIS,
WITHOFF, PAM, TRIPP, JILL, PAPPAS, MEYERS, WEATHERFORD, AND
WALLS

(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 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.
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 Magistrate Judge for further pre-trial proceedings, including a decision on
Plaintiff’s Motion for Appointment of Counsel (Doc. 3). 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
the costs, even if his application to proceed in forma pauperis is 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.
Signed this 11th day of April, 2017.

Judge Herndon
2017.04.11
10:16:35 -05'00'
UNITED STATES DISTRICT JUDGE