Trainor et al v. Gebke et al

Filing 32

MEMORANDUM AND ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. COUNT 4 is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. IT IS HEREBY ORDERED that, pursuant to Federal Rule of Civil Procedure 20(a)(2), Trainors retaliation claims (COUNTS 1 and 2) against CHRISTIANSON and ROVENSTEIN, which are unrelated to the claims against Gebke and Mueller in Count 3 for rejection of publications in violation of the First Amendment, are SEVERED into a new case. That new case shall be: Claims by TRAINOR against CHRISTIANSON and ROVENSTEIN for retaliation (Counts 1 and 2 herein). IT IS FURTHER ORDERED that the only claim remaining in this action is COUNT 3 against Defendants GEBKE and MUELLER, for rejecting Trainors and Turners publications in violation of the First Amendment. This case shall now be captioned as: COREY TRAINOR and MICHAEL TURNER, Plaintiffs, vs. LARRY GEBKE and ROBERT C. MUELLER, Defendants. IT IS FURTHER ORDERED that Defendants CHRISTIANSON and ROVENSTEIN are TERMINATED from this action with prejudice. Signed by Judge David R. Herndon on 10/27/2017. (jaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
COREY TRAINOR, # B-51552,
and MICHAEL TURNER, # K-51650,
Plaintiffs,
v.

No. 17-cv-00627-DRH

LARRY GEBKE,
ROBERT C. MUELLER,
MONICA CHRISTIANSON,
and OFFICER ROVENSTEIN,
Defendants.

MEMORANDUM AND ORDER
HERNDON, District Judge:
This matter is now before the Court for a merits review of the Complaint
(Doc. 30) pursuant to 28 U.S.C. § 1915A. Plaintiffs are currently incarcerated at
Centralia Correctional Center (“Centralia”), and have brought this pro se civil
rights action pursuant to 42 U.S.C. § 1983, claiming that Defendants violated
their First Amendment rights by preventing them from receiving certain
publications. Plaintiff Trainor also raises a retaliation claim.
Trainor filed the suit on June 14, 2017, naming himself and 5 other
prisoners as co-Plaintiffs.

Co-Plaintiff Turner later signed the Complaint and

affirmed that he wishes to proceed with this joint action. Three other co-Plaintiffs
voluntarily withdrew from the action, and one former co-Plaintiff was dismissed
by the Court for failure to comply with a court order. (See Docs. 24, 31).

Under § 1915A, the Court is required to screen prisoner complaints to filter
out non-meritorious claims. See 28 U.S.C. § 1915A(a). The Court must 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).
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 “no reasonable person could
suppose to have any merit.” 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.

Conversely, a complaint is plausible on its face “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Although the Court is obligated to accept factual allegations as true, see Smith v.

Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s
claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts
“should not accept as adequate abstract recitations of the elements of a cause of
action or conclusory legal statements.” Id. At the same time, however, the factual

allegations of a pro se complaint are to be liberally construed.

See Arnett v.

Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that some of the claims survive
threshold review under § 1915A.

However, analysis of the remaining claims

demonstrates that not all of the Defendants are properly joined in the same
action.

Accordingly, Trainor’s retaliation claims against Christianson and

Rovenstein shall be severed into a separate case.
The Complaint
The Complaint begins with Trainor’s allegations of retaliation and violation
of his First Amendment rights to receive publications through the mail. Turner
also alleges that a magazine was wrongfully withheld from him. The sections of
the Complaint containing allegations pertinent to the dismissed co-Plaintiffs shall
be disregarded and omitted from the following summary.
As background for the retaliation claim, Trainor alleges that he filed a
grievance against Christianson (Mailroom Supervisor) for mishandling his mail.
(Doc. 30, p. 4). Soon thereafter, Trainor’s newspapers were delivered to offenders
in other housing units instead of to him. He believes that Christianson engineered
the mis-delivery of the newspapers in retaliation for his grievance against her.
(Doc. 30, pp. 5, 12).
In August 2015, Trainor ordered a novel titled “Confessions of an Industry
Chic,” by Trumain McClure. (Doc. 30, p. 5). Trainor describes the book as a

fictional work about a “video vixen who gives insight on behind the scenes drama
in the entertainment industry.” Id. On September 1, 2015, Gebke (Chair of the
Publication Review Committee) notified Trainor that this book was denied. When
Trainor questioned Gebke, he said he had not read the book, but denied it
because “It’s that hip-hop crap, you don’t need to fill your head with that.” Id.
Next, Gebke rejected a magazine titled “Phat Puffs,” which Trainor
describes as a “non-nude, non-obscene” publication containing ads with AfricanAmerican models wearing lingerie and bikinis. Gebke’s stated reason for denying
“Phat Puffs” was that it contained “sexually explicit content.” Id. When Trainor
questioned what about it was sexually explicit, Gebke said he could not have “big
booty mags” because he “know[s] what you’ll use them for.” (Doc. 30, pp. 5-6).
In September 2016, a package of “non-nude” photographs which Trainor
had ordered were delivered to Centralia’s mailroom, and sent (apparently by
Christianson) to Rovenstein (Internal Affairs) for review. (Doc. 30, pp. 6, 13).
Rovenstein called Trainor in and said that the pictures were “inappropriate”
because the subjects were “dressed in scantily clad clothes, it’s classless.” (Doc.
30, p. 6). Rovenstein offered Trainor 3 of the photos, and Trainor requested a
shakedown slip to verify that the pictures would be confiscated. 1 This request
“upset and annoyed” Rovenstein, so he told Trainor to leave his office, and the
pictures would be sent back to the mailroom to be “shipped out.” Id. Rovenstein

Trainor’s exhibits indicate that he asked to be allowed to have those photos that
Rovenstein deemed acceptable, but was told that all the photos would be returned to the
mailroom. The grievance response stated that if one item in an envelope was considered
contraband, the entire contents would be withheld from the inmate. (Doc. 1-1, pp. 2-6).

1

sent the pictures back to Christianson.

Christianson failed to respond to

Trainor’s request slips inquiring on the whereabouts of his photos.
Trainor filed a grievance to Warden Mueller over these incidents, which
Mueller denied. Trainor alleges that Mueller consented to Gebke’s “censorship
policy,” which primarily excludes publications by African-American authors and
those featuring “big booty” women. (Doc. 30, pp. 6-7). Trainor contrasts the
denial of his requested items with publications that were allowed into Centralia,
including the June 2015 issue of “Maxim” magazine. That issue contained an
article entitled “Running and Gunning,” which glorifies “kills” by “elite forces,”
and another entitled “Deadliest Gangs” depicting weapons, drugs, and dead
bodies. (Doc. 30, p. 7). Also permitted are magazines such as “Playboy,” “Vanity
Fair,” “Cosmopolitan,” “Rolling Stone,” and fitness and motorcycle magazines
containing ads that reveal portions of female buttocks or breasts. (Doc. 30, p. 8).
On August 24, 2016, Turner was told by Christianson that his “Rotowire
Fantasy Football” magazine had been sent to Gebke for review. (Doc. 30, p. 8).
Turner had been receiving this publication for years without incident.
Christianson did not inform Turner of the reason why the magazine had been sent
for review, which violated the Illinois Administrative Code. (Doc. 30, p. 9).
On September 1, 2016, Gebke denied Turner permission to have the
“Rotowire” magazine, stating that its detailed information could be “used as an aid
in gambling.” Id. Turner had never been disciplined for gambling. In response to
Turner’s question about the policy, Gebke said that he allowed “Sports

Illustrated,” and Turner should order that.

Turner points out that “Sports

Illustrated” does not include equivalent football coverage to his desired
publication.

Additionally, the Fantasy Football league is internet-based, and

inmates do not have internet access to engage in gambling with that league.
Turner’s grievance to Mueller over the magazine confiscation was denied.
He claims that Gebke, with the “consent” of Mueller, has “established an excluded
list of publications” based on “their biased and unorthodox views.” (Doc. 30, p.
10).
Based on these facts, Plaintiffs articulate 3 claims. Count 1 asserts that
Christianson and Rovenstein retaliated against Trainor because of his grievance
“challenging their conduct.” (Doc. 30, p. 13). Count 2 is a First Amendment
claim against Gebke for banning publications which did not pose a security threat
to the institution and for singling out certain publications for censorship based on
his racial and cultural biases, with no rational relationship to security concerns.
(Doc. 30, pp. 13-14). Count 3 is labeled “Supervisory Liability” against Mueller,
for failing to correct the constitutional violations. (Doc. 30, p. 14).
Plaintiffs argue that the action should receive class certification, but have
not filed a separate motion requesting the Court to rule on that matter. (Doc. 30,
pp. 15-17).
Plaintiffs seek compensatory and punitive damages, as well as injunctive
and declaratory relief. (Doc. 30, p. 18).

Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into the following 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 designation of these counts does
not constitute an opinion as to their merit. Any other claim that is mentioned in
the Complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1: First Amendment retaliation claim against Christianson,
for diverting Trainor’s newspapers to other inmates and sending
Trainor’s photograph package to Internal Affairs, after Trainor filed a
grievance against her;
Count 2: First Amendment retaliation claim against Rovenstein, for
refusing to release any of Trainor’s photographs to him in September
2016, because Trainor requested Rovenstein to document the
confiscation of the “inappropriate” photos;
Count 3: First Amendment claim against Gebke and Mueller, for
rejecting Trainor’s book and magazine in August 2015, and rejecting
Turner’s magazine in August 2016, where the rejection was not
reasonably related to legitimate penological interests, and (as to
Trainor’s material) was based on racially and culturally biased
criteria;
Count 4:
Claim against Christianson for violating the Illinois
Administrative Code by failing to inform Turner of the reason his
magazine was sent to Gebke for review in August 2016.
Counts 1, 2, and 3 survive threshold review under § 1915A.

Count 4 fails

to state a constitutional claim upon which relief may be granted and shall be
dismissed.

Further, the surviving claims against Christianson and Rovenstein

shall be severed into a separate action pursuant to Federal Rules of Civil

Procedure 20 and 21.
Count 1 – Retaliation – Christianson
Prison officials may not retaliate against inmates for filing grievances or
otherwise complaining about their conditions of confinement. See, e.g., Gomez v.

Randle, 680 F.3d 859, 866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005
(7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000); Babcock v.

White, 102 F.3d 267 (7th Cir. 1996); Cain v. Lane, 857 F.2d 1139 (7th Cir. 1988).
“A complaint states a claim for retaliation when it sets forth ‘a chronology of
events from which retaliation may plausibly be inferred.’” Zimmerman v. Tribble,
226 F.3d 568, 573 (7th Cir. 2000) (citation omitted) (reversing district court’s
§ 1915A dismissal because inmate’s allegations established that “the exercise of
his [First Amendment] right was closely followed by the retaliatory act”).
In this case, Trainor alleges that he filed a grievance against Christianson
for mishandling his mail items.

He does not specify when that grievance was

filed, but asserts that soon after he submitted the grievance, Christianson began
diverting his newspapers to other inmates in different housing units.

This

chronology arguably presents a colorable claim of retaliation by Christianson
against Trainor for his complaint against her. Accordingly, this portion of the
retaliation claim survives review under § 1915A.
The other incident in which Christianson played a part was in September
2016, when Trainor’s incoming order of photographs was forwarded from the
mailroom to Internal Affairs, where Rovenstein reviewed and eventually

confiscated them. Trainor implies that Christianson sent the photos to Internal
Affairs.

(Doc. 30, p. 13).

Rovenstein later sent them back to Christianson’s

mailroom, and she failed to respond to Trainor’s inquiry as to what became of the
photos.
It is not clear whether Christianson’s handling of the photographs was
motivated by a desire to retaliate against Trainor, or whether she handled the
package in the same way as she would have treated any other similar material. If
her actions were taken in retaliation for the grievance, then the incident can
support a § 1983 claim.

See Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir.

2009) (discussing Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir. 1987) ("[A]n
act in retaliation for the exercise of a constitutionally protected right is actionable
under Section 1983 even if the act, when taken for different reasons, would have
been proper."). At this early stage, both portions of Trainor’s retaliation claim in
Count 1 merit further review against Christianson.
Count 2 – Retaliation – Rovenstein
Trainor also characterizes his claim against Rovenstein as a retaliation
claim. (Doc. 30, p. 13). He states that Rovenstein (and Christianson) “retaliated”
by “delaying his pictures mailed to him because [Trainor] filed a grievance
challenging their conduct.” Id. Rovenstein allegedly refused to issue Trainor a
shakedown slip or give him any of the pictures because Trainor “wanted proof
that they were being confiscated.” Id. This incident occurred in September 2016.
The Complaint does not identify any grievance that Trainor filed against

Rovenstein that might have motivated him to confiscate the pictures.

The

Complaint thus does not support a retaliation claim based on grievance activity.
However, Trainor’s request for documentation from Rovenstein regarding the
“inappropriate” photos could be considered a protected complaint regarding
Trainor’s conditions of confinement.

If so, then Trainor’s assertion that

Rovenstein refused to give Trainor the non-objectionable photos in retaliation for
Trainor’s request for a shakedown slip states a cognizable claim for retaliation at
this early stage of the case. See Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir.
2009) (to state a retaliation claim, plaintiff must have experienced an adverse
action that would likely deter future First Amendment activity, and the plaintiff’s
First Amendment activity must have been “a motivating factor” for the defendant
to take the retaliatory action).
At this juncture, Trainor’s retaliation claim in Count 2 against Rovenstein
survives § 1915A review.
Count 3 – Rejection of Publications
Trainor and Turner together assert this First Amendment claim against
Gebke, who rejected Trainor’s “Confessions of an Industry Chic” novel in
September 2015, denied Trainor’s “Phat Puffs” magazine soon after that, and
rejected Turner’s “Rotowire Fantasy Football” magazine in September 2016.
Trainor’s publications were rejected because Gebke ruled they contained sexually
explicit content. Gebke denied Turner’s football magazine, despite the fact that
this same publication had previously been allowed into the prison for years,

because he said it could be used for gambling.

The common issue between

Turner’s and Trainor’s claims is whether Gebke properly rejected these
publications based on legitimate penological interests (such as maintaining prison
safety or security), or whether the restriction of these reading materials violated
Plaintiffs’ First Amendment rights.
The freedom of speech protected by the First Amendment is not merely
freedom to speak; it is also freedom to read. King v. Fed. Bureau of Prisons, 415
F.3d 634, 638-39 (7th Cir. 2005) (citing Stanley v. Georgia, 394 U.S. 557, 564
(1969); Lamont v. Postmaster General, 381 U.S. 301, 306-07 (1965)).

While

inmates do not lose their constitutional rights upon being confined in prison,
some restrictions on those rights may properly be imposed by prison authorities.
In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court held that “when a
prison regulation impinges on inmates’ constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological interests.” Id. at 89. On
the other hand, “the arbitrary denial of access to published materials violates an
inmate’s first amendment rights.” Antonelli v. Sheahan, 81 F.3d 1422, 1433 (7th
Cir. 1996) (quoting Martin v. Tyson, 845 F.2d 1451, 1454 (7th Cir.) (per curiam),

cert. denied, 488 U.S. 863 (1988)).
Turner outlined four factors which courts must consider in evaluating
whether a regulation restricting prisoners’ rights is sufficiently reasonably related
to legitimate penological interests to withstand constitutional scrutiny: “(1) the
validity and rationality of the connection between a legitimate and neutral

government objective and the restriction; (2) whether the prison leaves open
‘alternative means of exercising’ the restricted right; (3) the restriction’s bearing
on the guards, other inmates, and the allocation of prison resources; and (4) the
existence of alternatives suggesting that the prison exaggerates its concerns.”

Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012) (citing Turner, 482 U.S. at
89-91).
In this case, the withholding of Trainor’s and Turner’s reading materials
would run afoul of the First Amendment if the reasons for refusing access to those
publications do not hold up to analysis under the Turner reasonableness factors.
Trainor argues that other magazines containing images of female models that are
similar to those found in “Phat Puffs” are currently allowed at Centralia, which
suggests that the screening criteria were inconsistently applied to reject Trainor’s
magazine.

Moreover, Gebke’s comments and the fact that magazines such as

“Playboy” are permitted indicate that Gebke’s rejection of Trainor’s material was
rooted in racial and cultural bias.

The Complaint also gives examples of

permitted magazines that include depictions of violence.

Turner argues that

Gebke arbitrarily rejected his “Fantasy Football” magazine when he had been
permitted to receive it for years before the September 2016 restriction.
Further factual development will be required in order to determine whether
the denial of Trainor’s and Turner’s publications violated their First Amendment
rights.

At this stage, the claims against Gebke in Count 3 merit additional

consideration.

In the Complaint, Plaintiffs seek to impose liability on Mueller on the theory
of supervisory liability. (Doc. 30, p. 14). The mere fact that Warden Mueller
supervised Gebke and could have reversed his decisions by ruling in favor of
either Plaintiff in the grievance process is not sufficient to state a claim against
him. The doctrine of respondeat superior (supervisory liability) is not applicable
to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). A
defendant must have been “personally responsible for the deprivation of a
constitutional right” in order to be held liable in a civil rights case. Id.
In their narrative, however, Plaintiffs claim that Gebke established a list of
banned publications and categories of materials, with the consent of Mueller (Doc.
30, pp. 7, 10). If Mueller knew about and approved Gebke’s system for screening
published materials, and/or condoned Gebke’s conduct, Mueller may be held
liable on that basis. Where a defendant has been alleged to have directed the
conduct or to have given knowing consent to the conduct which caused the
constitutional violation, that defendant has sufficient personal involvement to be
responsible for the violation, even though that defendant has not participated
directly in the violation. Chavez v. Ill. State Police, 251 F.3d 612, 652 (7th Cir.
2001) (“The supervisors must know about the conduct and facilitate it, approve it,
condone it, or turn a blind eye for fear of what they might see.”); McPhaul v. Bd. of

Comm’rs of Madison Cnty., 226 F.3d 558, 566 (7th Cir. 2000). On this basis,
Plaintiffs may also proceed with the First Amendment claim against Mueller in
Count 3.

Dismissal of Count 4 – Noncompliance with Illinois Administrative Code
Although Turner did not articulate a claim against Christianson in the
Complaint’s listing of claims (Doc. 30, pp. 13-14), he alleges that her notice
informing him of the “Rotowire” football magazine’s referral to Gebke for review
was defective.

Rather than leave Turner’s implied claim in doubt, the Court

deems it expedient to address the matter. Christianson’s notice did not state the
reason why she chose to send the magazine to the Publications Review Board for
approval. Turner points out that the Illinois Administrative Code (20 ILL. ADMIN.
CODE 525.230(c)) requires such a notice to “include an explanation why the
publication is deemed to contain unacceptable material.” (Doc. 30, p. 9).
Even if Christianson’s notice failed to comply with the requirements of the
Illinois Administrative Code, that does not provide grounds for a civil rights claim
against her pursuant to 42 U.S.C. §1983. A federal court does not enforce state
law or regulations. Archie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988)
(en banc), cert. denied, 489 U.S. 1065 (1989); Pasiewicz v. Lake Cnty. Forest

Preserve Dist., 270 F.3d 520, 526 (7th Cir. 2001). Count 4 shall therefore be
dismissed from the action with prejudice.
Severance of Parties
In addition to conducting a merits review under § 1915A, the Court must
consider whether the surviving claims and parties may properly proceed in the
same joint action, in consideration of Federal Rule of Civil Procedure 20. Looking

first at the Defendants and Rule 20(a)(2), 2 Plaintiffs’ Complaint articulates
retaliation claims (labeled in the Complaint as Count 1) only against Christianson
and Rovenstein, for 2 incidents involving Trainor’s newspapers and photos.
Trainor and Turner bring claims (labeled in the Complaint as Count 2) against
Gebke for wrongly denying their First Amendment right to receive magazines and
a book, and they seek to impose liability on Mueller for approving Gebke’s
censorship policy.
Under Rule 20(a)(2), a “plaintiff may join multiple defendants in a single
action only if plaintiff asserts at least one claim to relief against each of them that
arises out of the same transaction or occurrence and presents questions of law or
fact common to all.” Wright, Miller, & Kane, 7 Federal Practice & Procedure Civ.
3d § 1655 (West 2017); FED. R. CIV. P. 20(a)(2).

Here, the retaliation claims

against Christianson and Rovenstein did not arise from the same transaction or
occurrence, or series of transactions or occurrences, as the First Amendment
claims against Gebke and Mueller. Additionally, there is no common question of
law or fact that allows the Christianson/Rovenstein claims to remain in the same
action as the Gebke/Mueller claims.

The legal standards applicable to the

retaliation claims are not the same as those involved in the claims over denial of
access to reading materials. The factual questions regarding the claims against
Christianson and Rovenstein are also distinct from the factual questions involving

2

Rule 20, which governs joinder of parties in a single action, must be satisfied before the Court
turns to the question of whether claims are properly joined under Rule 18. Intercon Research
Assoc’s, Ltd. v. Dresser Industries, Inc., 696 F.2d 53, 57 (7th Cir. 1982); Wright, Miller, & Kane, 7
Federal Practice & Procedure Civil 3d § 1655 (West 2017).

Gebke and Mueller.

For these reasons, Christianson and Rovenstein are not

properly joined in the same action with Gebke and Mueller.
To resolve this improper joinder of Defendants, the Court will sever the
claims against Christianson and Rovenstein (Counts 1 and 2) into a separate
action. See FED. R. CIV. P. 21 (the Court may sever misjoined parties rather than
dismiss the action). Because Turner’s claim against Christianson in Count 4 shall
be dismissed, the newly severed case shall include only Trainor as a Plaintiff. The
claims against Gebke and Mueller brought jointly by Trainor and Turner (Count
3) shall continue in this action.
The Clerk shall be directed to open a new case with a newly-assigned case
number for Trainor’s retaliation claims against Christianson and Rovenstein, for
which a new filing fee shall be assessed.
Disposition
COUNT 4 is DISMISSED with prejudice for failure to state a claim upon
which relief may be granted.
IT IS HEREBY ORDERED that, pursuant to Federal Rule of Civil
Procedure 20(a)(2), Trainor’s retaliation claims (COUNTS 1 and 2) against
CHRISTIANSON and ROVENSTEIN, which are unrelated to the claims against
Gebke and Mueller in Count 3 for rejection of publications in violation of the First
Amendment, are SEVERED into a new case. That new case shall be: Claims by
TRAINOR against CHRISTIANSON and ROVENSTEIN for retaliation (Counts 1
and 2 herein).

In the new case, the Clerk is DIRECTED to file the following documents:
(1)
(2)
(3)
(4)
(5)

This Memorandum and Order
The Original Complaint (Doc. 30) and Trainor’s Exhibits (Doc.
1-1)
Trainor’s motion to proceed in forma pauperis (Doc. 2)
The Memorandum and Order at Doc. 13
The Memorandum and Order at Doc. 24

Trainor will be responsible for an additional $350.00 filing fee in the
new case.

Because this Memorandum and Order contains the §1915A merits

review of Counts 1 and 2, service may be ordered without delay on Defendants
Christianson and Rovenstein as soon as the new case is opened and a judge
assignment is made.
IT IS FURTHER ORDERED that the only claim remaining in this action

is COUNT 3 against Defendants GEBKE and MUELLER, for rejecting Trainor’s
and Turner’s publications in violation of the First Amendment. This case shall
now be captioned as: COREY TRAINOR and MICHAEL TURNER, Plaintiffs, vs.
LARRY GEBKE and ROBERT C. MUELLER, Defendants.
IT IS FURTHER ORDERED that Defendants CHRISTIANSON and
ROVENSTEIN are TERMINATED from this action with prejudice.
As to COUNT 3, which remains in the instant case, the Clerk of Court shall
prepare for Defendants GEBKE and MUELLER: (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 (Doc. 30), 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.
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.
Further, this entire matter shall be REFERRED to the 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 Plaintiffs, and the judgment includes the
payment of costs under § 1915, Plaintiffs will be required to pay the full amount
of the costs, notwithstanding that their applications to proceed in forma pauperis

have been granted. See 28 U.S.C. § 1915(f)(2)(A).
Finally, Plaintiffs are ADVISED that they are under a continuing obligation
to keep the Clerk of Court and each opposing party informed of any change in
address; the Court will not independently investigate a Plaintiff’s 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 27th day of October, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.10.27
12:41:17 -05'00'
UNITED STATES DISTRICT JUDGE