Wiggins v. Baldwin et al

Filing 9

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge David R. Herndon on 7/25/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MALCOLM WIGGINS,
Plaintiff,
vs.

Case No. 17 cv–0583 DRH

JOHN BALDWIN,
JOSEPH YURKOVICH,
ALFONSO DAVID,
APOSTLE,
TAMMY PITTAYATHIHAN,
JEFFERY DENNISON,
JOHN DOE, and
UNKNOWN TACTICAL TEAM
MEMBERS
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Malcolm Wiggins, an inmate in Illinois River Correctional Center,
brings this action for deprivations of his constitutional rights pursuant to 42
U.S.C. § 1983 that occurred at Shawnee Correctional Center.

Plaintiff seeks

compensatory damages, punitive damages, 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) Screening – 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.
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(b) Grounds for Dismissal – 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.
The Complaint
On August 8, 2016, while at Shawnee Correctional Center, Plaintiff’s cell
was shaken down by the Orange Crush tactical team. (Doc. 1, p. 5). Dennison
ordered the shakedown after a gang fight. (Doc. 1, p. 9). Plaintiff claims he had
nothing to do with the gang fight, and that the gang members had already been

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taken to segregation. Id. Plaintiff concludes that Dennison’s purpose in ordering
the shakedown was to hurt, harm, scare, and retaliate against inmates. Id.
Plaintiff was housed in cell #34, 1 House, D-wing. (Doc. 1, p. 5). Plaintiff
alleges that he was specifically targeted because he was known to file grievances.
(Doc. 1, p. 9). As a result of the shakedown, Plaintiff’s cell was trashed, food and
soap were poured on his clothes and legal work, and $92.27 worth of personal
property was taken and destroyed by an unknown Orange Crush Member. Id.
John Doe and an unknown Orange Crush Member stripped searched
Plaintiff and then cuffed him. (Doc. 1, p. 5). Plaintiff alleges that Doe had Plaintiff
turn his palms out and his thumbs up prior to placing the handcuffs on Plaintiff.

Id. Plaintiff alleges that this is a stressful position that causes twisting in the
shoulders and pain. Id. Additionally, Plaintiff was forced to hold his head to his
chest for over 2 hours. Id. Plaintiff alleges that Doe, Unknown Orange Crush
Member, Yurkovich, and others were put on notice about the nature of this
position by prior lawsuits, grievances, and complaints. Id.
Plaintiff immediately felt pain after being cuffed. (Doc. 1, p. 6). He asked
Doe to loosen the cuffs, but Doe refused.

Id.

As a result of the too-tight

handcuffs, Plaintiff experienced hand numbness, swelling, shoulder pain, and a
lump on his collarbone and A.C. joint. Id.
During the strip search, Plaintiff was forced to touch his genitals and then
spread his buttocks. (Doc. 1, p. 7). He was then instructed to put his fingers in
his mouth without being able to wash his hands prior. Id. Plaintiff specifically

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asked if he could wash his hands, but Doe and the Unknown Orange Crush
Member threatened to beat Plaintiff. Id. Plaintiff was then forced to walk to the
inmate dining room in a “nuts to butts” position. Id. Plaintiff alleges that he
suffered emotional distress, anxiety, and other psychological injuries as a result of
these actions. Id.
Plaintiff alleges that Warden Jeffery Dennison and Joseph Yurkovich turned
a blind eye to the conduct. (Doc. 1, p. 8). Specifically, he alleges that there is a
practice in the IDOC to conduct shakedowns in this manner, and that Yurkovich
has overseen this practice. Id. Plaintiff alleges that Yurkovich encouraged this
conduct and also failed to punish past incidents of similar misconduct. Id.
Plaintiff alleges that he saw Dr. Apostle on August 24, 2016, and Dr.
Alfonso David and Tammy Pittayathihan on September 26, 2016 in reference to
the injuries he received during the shakedown. (Doc. 1, p. 10). Plaintiff alleges
that defendants failed to schedule a timely medical examination and/or treatment.
(Doc. 1, p. 11). They have refused to give Plaintiff an MRI or send him to an
orthopedist. (Doc. 1, p. 12). This refusal has left Plaintiff in severe pain, limited
his range of motion, and caused emotional distress. (Doc. 1, p. 11).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into 7 counts. 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 following claims survive threshold review:

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Count 1 – John Doe used excessive force on Plaintiff when he cuffed
his hands too tightly, causing injury in violation of the Eighth
Amendment;
Count 2 – Doe and Unknown Orange Crush Member conducted an
unreasonable strip search of Plaintiff when they conducted it in a
humiliating manner, in violation of the Eighth Amendment;
Count 3 – Dennison and Yurkovich had a custom or practice of
directing and/or condoning strip searches and/or shakedowns
conducted in an unreasonable manner in violation of the Eighth
Amendment;
Count 4 – David, Apostle, and Pittayathihan were deliberately
indifferent to Plaintiff’s serious medical needs when they delayed
treating him after he suffered injuries during the shakedown and
persisted in a course of medical treatment after it proved ineffective
in violation of the Eighth Amendment.
Plaintiff has also attempted to bring other Counts, but for the reasons
elucidated below, these claims do not survive threshold review:
Count 5 – Dennison and Unknown Orange Crush Member shook
down Plaintiff’s cell in retaliation for grievances and lawsuits he had
filed in violation of the First Amendment;
Count 6 – Unknown Orange Crush Member conducted an
unreasonable search of Plaintiff’s cell in violation of the Fourth
Amendment;
Count 7 – Unknown Orange Crush Member violated Plaintiff’s
Fourteenth Amendment due process rights when he destroyed
Plaintiff’s property without due process of law.
As to Plaintiff’s Count 1, the intentional use of excessive force by prison
guards against an inmate without penological justification constitutes cruel and
unusual punishment in violation of the Eighth Amendment and is actionable
under § 1983. See Wilkins v. Gaddy, 559 U.S. 34 (2010); DeWalt v. Carter, 224
F.3d 607, 619 (7th Cir. 2000). An inmate must show that an assault occurred,
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and that “it was carried out ‘maliciously and sadistically’ rather than as part of ‘a
good-faith effort to maintain or restore discipline.’” Wilkins, 559 U.S. at 40 (citing

Hudson v. McMillian, 503 U.S. 1, 6 (1992)).

The factors relevant to this

determination include: (1) the need for the application of force; (2) the
relationship between the need and the amount of force that was used; (3) the
extent of injury inflicted; (4) the extent of the threat to the safety of staff and
inmates, as reasonably perceived by the responsible officials on the basis of the
facts known to them; and (5) any efforts made to temper the severity of a forceful
response. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (citation
omitted).
An inmate seeking damages for the use of excessive force need not establish
serious bodily injury to make a claim, but not “every malevolent touch by a prison
guard gives rise to a federal cause of action.” Wilkins, 559 U.S. at 37-38 (the
question is whether force was de minimis, not whether the injury suffered was de
minimis); see also Outlaw v. Newkirk, 259 F.3d 833, 837-38 (7th Cir. 2001).
Excessively tight handcuffs can be an example of excessive force. Payne v. Pauley,
337 F.3d 767, 779 (7th Cir. 2003); Herzog v. Village of Winnetka, 309 F.3d 1041
(7th Cir. 2002).
Here Plaintiff has alleged that he was handcuffed as part of a routine
shakedown.

According to the Complaint, Plaintiff complied with Doe’s

instructions during a strip search and was not resisting or otherwise interfering
with the shakedown at the time he was handcuffed.

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Despite his compliance,

Plaintiff alleges that the handcuffs were over-tightened, causing him permanent
injuries to his shoulder, arm, and wrist.

Plaintiff also alleges that when he

brought the overly-tight handcuffs to Doe’s attention, his requests were ignored.
This is sufficient to state an excessive force claim, and Count 1 shall proceed
against John Doe.
Count 2 alleges that Doe and an Unknown Orange Crush member
conducted a strip search of Plaintiff in a humiliating manner, specifically, that
they forced him to touch his genitals and then touch his mouth. A strip-search in
jail or prison can be cruel and unusual punishment. See Mays v. Springborn, 575
F.3d 643, 649 (7th Cir. 2009); Peckham v. Wisconsin Dep't of Corrections, 141
F.3d 694, 697 (7th Cir. 1998).

A prisoner states a claim under the Eighth

Amendment when he plausibly alleges that the strip-search in question was
motivated by a desire to harass or humiliate rather than by a legitimate
justification, such as the need for order and security in prisons. See Calhoun v.

DeTella, 319 F.3d 936, 939 (7th Cir. 2003); Meriwether v. Faulkner, 821 F.2d
408, 418 (7th Cir. 1987); see also Hudson v. Palmer, 468 U.S. 517, 530 (1984)
(Eighth Amendment protects against “calculated harassment unrelated to prison
needs”). Even where prison authorities are able to identify a valid correctional
justification for the search, it may still violate the Eighth Amendment if
“conducted in a harassing manner intended to humiliate and cause psychological
pain.” Mays, 575 F.3d at 649 (reversing summary judgment for defendants). In
short, where there is no legitimate reason for the challenged strip-search or the

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manner in which it was conducted, the search may “involve the unnecessary and
wanton infliction of pain” in violation of the Eighth Amendment.

Rhodes v.

Chapman, 452 U.S. 337, 346 (1981), quoting Gregg v. Georgia, 428 U.S. 153, 173
(1976); King v. McCarty, 781 F.3d 889, 897 (7th Cir. 2015)
At the pleading stage, Plaintiff’s allegations regarding the methods used in
the strip search plausibly suggest that the strip searches were being performed to
humiliate the inmate, rather than for legitimate security purposes.

Therefore

Count 2 shall proceed against Doe and Unknown Orange Crush Member.
As to Count 3, Plaintiff alleges that Yurkovich and Dennison are also liable
for the allegedly unconstitutional strip searches because they approved and
implemented the shakedown methodology. In his “Defendants” section, Plaintiff
notes that both Yurkovich and Dennison have “authority.” But Plaintiff cannot
sue Yurkovich and Dennison on the basis of their positions as supervisors
because there is no respondeat superior liability under § 1983. 1

Sanville v.

McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State
Police, 251 F.3d 612, 651 (7th Cir. 2001)). See also Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978); Eades v. Thompson, 823 F.2d 1055, 1063 (7th Cir.
1987); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983); Duncan v.

Duckworth, 644 F.2d 653, 655-56 (7th Cir. 1981).
Additionally, Plaintiff has not alleged that Yurkovich or Dennison were
present for the shakedown or knew that Plaintiff specifically would be strip

1

To the extent that Plaintiff is trying to pursue a respondeat superior claim against John Baldwin,
that claim also fails.

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searched in the manner described. Thus Plaintiff has not sufficiently alleged that
Yurkovich or Dennison were personally involved in the constitutional violations
described in Counts 1 and 2. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.
1995) (“To recover damages under § 1983, a plaintiff must establish that a
defendant was personally responsible for the deprivation of a constitutional right .
. . he must know about the conduct and facilitate it, approve it, condone it, or
turn a blind eye . . .” )(citation omitted). Plaintiff has alleged that Yurkovich and
Dennison “turned a blind eye,” but as he has not alleged that they were actually
present, it is not clear what he means by that.

There is no allegation that

Dennison or Yurkovich specifically knew that Plaintiff personally experienced pain
as the result of the cuffing or that his cell was trashed. “Turned a blind eye” is a
conclusory allegation here.

Plaintiff has not adequately alleged personal

involvement.
However, another plausible reading of Plaintiff’s Complaint is that there
was a custom or practice of carrying out shakedowns in the manner described by
Plaintiff. Plaintiffs may recover when government action takes place pursuant to
an unconstitutional policy or custom. Monell v. Dep’t of Soc. Servs., 436 U.S.
658 (1978). Plaintiff shall therefore be permitted to proceed against Yurkovich
and Dennison in Count 3 on the theory that they promulgated or encouraged the
methodology of the shakedown under a Monell theory of liability.
Count 4 alleges that the medical defendants were deliberately indifferent to
Plaintiff’s serious medical needs in the aftermath of the shakedown.

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Prison

officials impose cruel and unusual punishment in violation of the Eighth
Amendment when they are deliberately indifferent to a serious medical need.

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 for deliberate indifference, an inmate
must show that he 1) suffered from an objectively serious medical condition; and
2) that the defendant was deliberately indifferent to a risk of serious harm from
that condition.

Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016).

An

objectively serious condition includes an ailment that has been “diagnosed by a
physician as mandating treatment,” one that significantly affects an individual’s
daily activities, or which involves chronic and substantial pain.

Gutierrez v.

Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). The subjective element requires
proof that the defendant knew of facts from which he could infer that a
substantial risk of serious harm exists, and he must actually draw the inference.

Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016) (citing Farmer v. Brennan, 511
U.S. 825, 837 (1994)).
“Delaying treatment may constitute deliberate indifference if such delay
exacerbated the injury or unnecessarily prolonged an inmate’s pain.” Gomez v.

Randle, 680 F.3d 859, 865 (7th Cir. 2012) (internal citations and quotations
omitted); see also Farmer v. Brennan, 511 U.S. 825, 842 (1994).

The Eight

Amendment does not give prisoners entitlement to “demand specific care” or “the
best care possible,” but only requires “reasonable measures to meet a substantial
risk of serious harm.”

Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).

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Deliberate indifference may also be shown where medical providers persist in a
course of treatment known to be ineffective. Berry v. Peterman, 604 F.3d 435,
441-42 (7th Cir. 2010); Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005).
Plaintiff alleges that he has suffered permanent and lasting pain as a result
of the improper shakedown.

He alleges that his condition was ignored and

defendants failed to take adequate steps to diagnose and treat his pain. On these
facts, Plaintiff has stated a plausible claim that David, Apostle, and Pittayathihan
were deliberately indifferent to his shoulder, arm, and wrist pain after the
shakedown. Count 4 shall be permitted to proceed.
But all of Plaintiff’s remaining claims must be dismissed. Plaintiff alleges
that Dennison ordered the shakedown of his cell and an unknown Orange Crush
Member conducted an unreasonable shakedown of his cell out of retaliation in
Count 5. To succeed on a First Amendment Retaliation claim, a plaintiff must
prove 1) that he engaged in conduct protected by the First Amendment; 2) that he
suffered a deprivation that would likely deter First Amendment activity in the
future; and 3) that the protected conduct was a “motivating factor” for taking the
retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
Plaintiff has not adequately alleged the first element. Plaintiff has alleged
that he filed grievances and lawsuits generally, but that is insufficient. Plaintiff
must plead this element with particularity. See Higgs v. Carver, 286 F.3d 437,
439 (7th Cir. 2002) (“Had Higgs merely alleged that the defendants had retaliated
against him for filing a suit, without identifying the suit or the act or acts claimed

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to have constituted retaliation, the complaint would be insufficient.”). Plaintiff has
not identified the suit or suits that he filed.

He has not pointed to specific

grievances that he filed. He has not alleged that he filed any suits or grievances
specifically naming Dennison prior to the shakedown. Moreover, because he does
not know the identity of the Orange Crush Member who searched his cell, he does
not actually know if he filed any grievances or lawsuits against him, making his
claim as to the Orange Crush Member entirely speculative. At this stage, Plaintiff
has not made sufficient allegations as to the first element of a retaliation claim.
Additionally, Plaintiff states that the search was conducted for a legitimate
penological reason. See Mays v Springborn, 575 F.3d 643, 650 (7th Cir. 2009).
Plaintiff states that the shakedown was conducted after a gang fight.

Plaintiff

alleges that it was unnecessary to conduct the search because the perpetrators
were already in segregation, but that is merely his opinion and prison officials are
permitted wide latitude to take steps to ensure the safety and security of the
institution. Bell v. Wolfish, 441 U.S. 520, 547 (1979). There is no allegation that
Plaintiff’s cell was the only cell searched; in fact, the allegations suggest that many
inmates were subjected to the shakedown.

The existence of a legitimate

penological reason for the search suggests that Plaintiff’s claim of retaliation is
conclusory and unsupported by plausible facts. For these reasons, Count 5 is
dismissed without prejudice for failure to state a claim.
Count 6 fails because prisoners have no Fourth Amendment protection
against unreasonable searches of their prisons cells.

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Jones v. Walker, 358 F.

App'x 708, 712 (7th Cir. 2009) (citing Hudson v. Palmer, 468 U.S. 517, 526
(1984)); Hanrahan v. Lane, 747 F.2d 1137, 1139 (7th Cir.1984)); see also King v.

McCarty, 781 F.3d 889, 900 (7th Cir. 2015) (reiterating that prisoners have no
right of privacy under the Fourth Amendment). Therefore, Plaintiff’s claim that
his cell was searched in a manner that destroyed various items and left a mess
states no claim under the Fourth Amendment. For this reason, Count 6 will be
dismissed with prejudice as legally frivolous.
Likewise, Plaintiff’s claim for the property lost or destroyed during the cell
search also fails. A claim that a person was deprived of their property without
due process of law arises under the Fourteenth Amendment. However, there is no
due process violation if state law provides a meaningful post-deprivation remedy,
and Illinois law does. See Hudson, 468 U.S. at 533; Murdock v. Washington, 193
F.3d 510, 512-13 (7th Cir. 1999); Kimbrough v. O'Neil, 523 F.2d 1057, 1059 (7th
Cir. 1975). If Plaintiff has any claim for the loss or destruction of his property,
that claim must be brought in the Illinois Court of Claims. It is not cognizable in
Federal Court. Count 7 will also be dismissed with prejudice as legally frivolous.
As another matter, Plaintiff has named every defendant in both their official
and individual capacity. This is inappropriate. Individuals are not “persons” in
their official capacities under § 1983 for the purposes of this suit. Plaintiff can
only bring claims against individuals that were personally involved in the
deprivation of which he complains. There is no supervisory liability in a § 1983
action; thus to be held individually liable, a defendant must be “‘personally

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responsible for the deprivation of a constitutional right.’” Sanville v. McCaughtry,
266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State Police, 251 F.3d
612, 651 (7th Cir. 2001). Therefore, to the extent that Plaintiff has attempted to
bring claims against any defendant in their official capacity, those claims must be
dismissed, with one exception.
The only time it is appropriate to name a defendant in his or her official
capacity is when a plaintiff seeks injunctive relief. Gonzalez v. Feinerman, 663
F.3d 311, 315 (7th Cir. 2011). In that case, a plaintiff need not allege any specific
involvement and it is irrelevant whether the party participated in the alleged
violations.

Id. (citing Houston v. Sheahan, 62 F.3d 902, 903 (7th Cir. 1995);

Ogden v. United States, 758 F.2d 1168, 1177 (7th Cir. 1985)). Here, Plaintiff has
requested the injunctive relief of being referred to an outside physician for his
injuries. 2

Although the Warden is frequently the appropriate party for such

injunctive relief, Plaintiff has transferred prisons since filing suit and is no longer
in Jeffrey Dennison’s custody. But John Baldwin, as Director of the IDOC, has
the authority to order injunctive relief, and the Court finds that he is an
appropriate party, in his official capacity for Plaintiff’s request. Plaintiff has not
included Baldwin in his statement of claim, and thus has not adequately pleaded
that he was personally involved in any of the other conduct complained of, so
Plaintiff’s case proceeds against Baldwin only in his official capacity. See Collins

2

The Complaint also requests that the defendants pay for Plaintiff’s future medical care and pay for any
disability that arises as a result of this incident, but those requests are duplicative of the requests for monetary
damages and not true requests for injunctive relief.

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v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998) (“A plaintiff cannot state a claim
against a defendant by including the defendant’s name in the caption.”)

The

claims go forward against all other named Defendants in their individual
capacities only.
Finally, Plaintiff has brought suit against “(unknown) members of tactical
team, members know[n] as ‘(Orange Crush)’ . . . tactical team members [o]n the
day of question.” (Doc 1, p. 3). Although Plaintiff has used the plural “members”
throughout, after review of the Complaint, the Court finds that Plaintiff has only
stated a viable claim against 1 Orange Crush Member—the member who assisted
in the allegedly unreasonable and humiliating strip search in Count 2. Plaintiff’s
claim against the Orange Crush Member who searched his cell in Count 6 has
been dismissed as discussed above. To the extent that Plaintiff is attempting to
bring claims against a large group of vague, undefined Orange Crush Members,
those claims are dismissed without prejudice for failure to state a claim. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (finding that a complaint must describe “more
than a sheer possibility that a defendant has acted unlawfully”); Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough
to raise a right to relief above the speculative level.”); See also Brooks v. Ross, 578
F.3d 574, 580 (7th Cir. 2009) (finding the phrase “one or more of the Defendants”
did not adequately connect specific defendants to illegal acts, and thus failed to
adequately plead personal involvement). The Clerk of Court therefore is directed
to change the entry “Unknown Party” to 2 entries: “John Doe” and “Unknown

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Orange Crush Member.”

Should Plaintiff wish to bring claims against other

Orange Crush Members, he should move to file an amended complaint describing
the actions that those officers took against him with particularity.
Pending Motions
Plaintiff’s Motion to Appoint Counsel is REFERRED to a United States
Magistrate Judge.

(Doc. 3).

Plaintiff’s Motion for a Preliminary Injunction is

REFERRED to a United States Magistrate Judge for immediate disposition. (Doc.
8).
Disposition
IT IS HEREBY ORDERED that Counts 1-4 survive against Defendants
Yurkovich, David, Apostle, Pittayathihan, Dennison, Doe, and Unknown Orange
Crush Member. Plaintiff’s request for injunctive relief proceeds against Baldwin
only in his official capacity.

The Clerk of Court is DIRECTED to terminate

“Unknown Party” from the docket and replace that designation with 2 entries:
“John Doe” and “Unknown Orange Crush Member.”

Count 5 is DISMISSED

WITHOUT PREJUDICE for failure to state a claim. Counts 6-7 are DISMISSED
WITH PREJUDICE as legally frivolous.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants
Baldwin, Yurkovich, David, Apostle, Pittayathihan, and Dennison:

(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
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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 the Unknown (John Doe) Defendants until
such time as Plaintiff has identified them by name in a properly filed amended
complaint. Plaintiff is ADVISED that it is Plaintiff’s responsibility to provide the
Court with the names and service addresses for these individuals.
IT IS FURTHER ORDERED that, 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.
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.

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Further, this entire matter is REFERRED to a United States Magistrate
Judge for disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. §
636(c), should all the parties consent to such a referral.
IT IS FURTHER ORDERED that 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 that his
application to proceed in forma pauperis has been 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).
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IT IS SO ORDERED.
DATED: July 25, 2017

Digitally signed by
Judge David R.
Herndon
Date: 2017.07.25
14:51:59 -05'00'
__________________________________
United States District Judge

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