Pack v. Mueller et al
ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 10/25/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES L. PACK,
ROBERT C. MUELLER,
JOHN R. BALDWIN,
JARED R. FARTHING,
MARK A BURTON,
ROBERT T. WEGMAN,
JOHN AND JANE DOES,
Case No. 17−cv–0880−MJR
MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff James L. Pack, an inmate in Centralia Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983.
injunctive relief and monetary damages. 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
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
(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, 102627 (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 Amended Complaint and any supporting exhibits, the Court
finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to
The Amended Complaint
Plaintiff originally brought suit on August 21, 2017. (Doc. 1). Prior to screening,
Plaintiff sought leave to file an Amended Complaint on September 8, 2017. (Doc. 8). The Court
granted leave once as a matter of course on October 3, 2017, (Doc. 10), and the Amended
Complaint was filed on October 4, 2017. (Doc. 11).
Plaintiff became a Wiccan in the fall of 2014. (Doc. 11, p. 15). 1 On December 12, 2014,
he ordered a book, Witches’ Craft: A Multidenominational Wiccan Bible. Id. Before he could
receive Witches’ Craft, Officer Voss told him that it had to be sent to the Publication Review
Board. Id. The Publication Review Board determined that the book contained 6 pages of
objectionable material depicting bondage, and that it was on a state-wide banned list. Id.
Plaintiff offered to cut out the 6 pages, but Larry Gebke and Monika Christianson told him he
had to send Witches’ Craft out or have it destroyed. (Doc. 11, pp. 15-16).
On May 3, 2016, Voss called Plaintiff to the personal property department to pick up a
Celtic cross with a small pentagram, which had been approved by Chaplain Heimgardtner. (Doc.
11, p. 16). Plaintiff filed a motion to join a related action in this court, 14-cv-661-SMY-RJD, on
October 16, 2016. Id. On October 25, Voss confiscated the cross on the orders of McQuarrie.
Id. Voss specifically told Plaintiff that he was following McQuarrie’s orders and did not know
why the cross was being confiscated. Id. Plaintiff’s counselor, Susan Walker, denied his
grievance on this issue. (Doc 11, p. 17). Bart Toennies and Warden Robert Mueller also denied
the grievance in January 2017. Id.
Officer Farthing, who was assigned to Plaintiff’s housing unit as a “Control Officer,”
shook down Plaintiff’s cell on January 7, 2017. Id. Plaintiff alleges that shaking down cells was
Officer Meier’s duty, not Farthing’s. (Doc. 11, p. 17, 19). The shakedown focused on Plaintiff’s
property, not his cellmate’s.
(Doc. 11, p. 17).
Farthing destroyed a 2-inch pyramid that
Plaintiff included some factual allegations that he then omitted from his statement of claim. As some of
these facts do not appear relevant to the claims in this lawsuit, the Court will not discuss them further. To the extent
that Plaintiff intended to bring claims based on facts not discussed in this order, he should file a motion seeking
leave to amend, and clarifying which claims he believes those facts support.
Petitioner used in the practice of his religion. Id. As he did so, Farthing laughed and told
Plaintiff that he didn’t like Wiccans. (Doc. 11, p. 17, 19). Farthing also confiscated a denim
coat and 2 small prayer stones. Id. Farthing told Plaintiff that if he could prove the stones were
vital to his religion, he would return them. Id. Plaintiff was issued a ticket regarding the coat
because it had a secret pocket; Plaintiff contests this characterization. (Doc. 11, p. 17-18).
Plaintiff alleges that Farthing continued to point and laugh at Plaintiff to other officers after the
incident. (Doc. 11, p. 20).
Plaintiff went before a disciplinary committee made up of Burton and Rupert after the
cell shakedown. (Doc. 11, p. 18). When Plaintiff tried to explain about his prayer stones, Burton
said, “They are not fucking prayer stones. They are just rocks and prayer stones are what the
state approves and comes in through the mail.” Id. As punishment, Plaintiff received 1 month B
grade. Id. He filed a grievance, which was denied by Wegman, Mueller, and Baldwin. Id.
Plaintiff also alleges that his grievances regarding the confiscation of his religious items
and the scheduling of Wiccan prayer services should have been heard by the Religious Practice
Advisory Board and not the Administrative Review Board. (Doc. 11, p. 19).
On September 6, 2017, Plaintiff was making legal copies for this suit when the law
librarian, Sondra Millner noticed a copy of an email between Chief Chaplain Keim and Teri
Anderson regarding the banning of the Witches’ Craft. (Doc. 11, p. 20). Millner suggested the
email be confiscated and Mueller agreed. Id. Dille confiscated the email. (Doc. 11, p. 12).
Millner also refused to make copies of certain Illinois regulations when she discovered the nature
of his cause of action. (Doc. 11, p. 20).
Plaintiff has also been prohibited from possessing a set of Rune tiles, a deck of Tarot
cards, a prayer rug, and a pentagram, which are all necessary to the practice of his sincerely held
religious beliefs. (Doc. 11, p. 21). Wiccans are also not allowed to access the chapel space on
the same basis as other groups. Id. When Chaplain Heimgardtner was chaplain, he allowed
Wiccans to meet on the 1st, 3rd, and 5th Fridays of the month; when Chaplain Boehler took over
in January 2017, he changed the scheduled to every 2nd and 4th Friday of the month because he
did not want the Wiccans to be able to meet twice in a row during months with 5 weeks. Id. The
change in the schedule has also caused problems with creating accurate call lists for services. Id.
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 10 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:
Count 1 – Mueller, Boehler, Keim, Baldwin, and John and Jane Does (Unknown
Publication Review Board members) impermissibly burdened Plaintiff’s exercise
of his sincerely held religious beliefs when they created or approved policies that
prohibited the possession of tarot cards, Witches’ Craft: A Multidenominational
Wiccan Bible, rune tiles, a pentagram symbol, etc.; and that offered services to
Wiccan inmates on unequal terms as members of other religious denominations in
violation of the First and Fourteenth Amendments, the Religious Land Use and
Institutionalized Person’s Act (RLUIPA), and the Illinois Religious Freedom
Restoration Act (IRFRA);
Count 2 – Gebke, Christianson, Voss, and John and Jane Doe members withheld
Witches’ Craft: A Multidenominational Wiccan Bible from Plaintiff in violation
of the First and Fourteenth Amendments, RLUIPA, and IFRRA;
Count 3 – Heimgardtner, McQuarrie, Walker, Waggoner, Toennies, and Mueller
confiscated Plaintiff’s Celtic cross from him in violation of the First and
Fourteenth Amendments, RLUIPA, and IFRRA;
Count 4 – McQuarrie, Walker, Waggoner, Toennies, and Mueller retaliated
against Plaintiff for attempting to join the Sangraal litigation, 14-cv-661- JPG, by
confiscating his Celtic cross;
Count 5 – Farthing and Meier retaliated against Plaintiff due to his Wiccan
beliefs when Farthing tossed his cell, destroyed a pyramid, confiscated a coat and
prayer stones, and mocked Plaintiff after the incident in violation of the First
Count 6 – Burton, Rupert, Wegman, Mueller, and Baldwin retaliated against
Plaintiff for his Wiccan beliefs by disciplining him for possession of his prayer
stones and a coat and/or condoning such discipline in violation of the First
Plaintiff has also attempted to bring other Counts, but for the reasons elucidated below,
these claims do not survive threshold review:
Count 7 – Boehler impermissibly burdened Plaintiff’s exercise of his sincerely
held religious beliefs when he changed the schedule of Wiccan services
repeatedly in order to make it more difficult for inmates to be called for services
in violation of the First and Fourteenth Amendments, RLUIPA, and IRFRA;
Count 8 – Burton, Rupert, Wegman, Mueller, and Baldwin violated Plaintiff’s
due process rights when they disciplined him for possession of a coat and prayer
Count 9 – Millner, Dille, and Mueller violated Plaintiff’s right of access to the
courts under the First Amendment when they confiscated his email regarding the
confiscation of the Witches’ Craft: A Multidenominational Wiccan Bible and
refused to make copies of relevant regulations and guidelines;
Count 10 – Plaintiff’s grievances and concerns were heard by the Administrative
Review Board and not the Religious Practice Advisory Board.
As to Counts 1-3, prison officials may act to limit the expression of sincere religious
belief if the restriction is justified by a legitimate penological interest. Conyers v. Abitz, 416
F.3d 580, 585 (7th Cir. 2005); Childs v. Duckworth, 705 F.2d 915, 920 (7th Cir. 1983).
Legitimate penological interests include the preservation of security in prison, as well as
economic concerns. See Ortiz v. Downey, 561 F.3d 664, 669 (7th Cir. 2009). When these
concerns are raised as justifications by prison officials for their actions that restrict the practice
of religion, the Court looks at four factors to determine whether the restriction is constitutional:
(1) whether the restriction “is rationally related to a legitimate and neutral
governmental objective”; (2) “whether there are alternative means of exercising
the right that remain open to the inmate”; (3) “what impact an accommodation of
the asserted right will have on guards and other inmates”; and (4) “whether there
are obvious alternatives to the [restriction] that show that it is an exaggerated
response to [penological] concerns.”
Id. (citing Lindell v. Frank, 377 F.3d 655, 657 (7th Cir. 2004)).
The Fourteenth Amendment equal protection clause prohibits discrimination and requires
the evenhanded treatment of all religions:
In providing [inmates the] opportunity [to practice their religion], the efforts of
prison administrators, when assessed in their totality, must be evenhanded.
Prisons cannot discriminate against a particular religion. The rights of inmates
belonging to minority or non-traditional religions must be respected to the same
degree as the rights of those belonging to larger and more traditional
denominations. Of course, economic and, at times, security constraints may
require that the needs of inmates adhering to one faith be accommodated
differently from those adhering to another. Nevertheless, the treatment of all
inmates must be qualitatively comparable.
Al–Alamin v. Gramley, 926 F.2d 680, 686 (7th Cir. 1991) (citations omitted).
Counts 1-3 state constitutional claims under the First and Fourteenth Amendments.
Plaintiff has alleged that prison officials instituted policies that prohibited him from owning or
using objects central to his Wiccan faith.
He has also alleged that he was deprived of a
pentagram symbol and a book that are fundamental to his practice of religion. He has further
alleged that Wicca is being treated differently than more mainstream religions like Christianity
due to disparate scheduling practices or policies. These allegations state a claim under the First
and Fourteenth Amendment, both for the policies at issue, and in the case of the confiscation of
Plaintiff’s book and Celtic cross, against those who actually did the confiscating.
RLUIPA applies to state and local governments and to those acting under color of state
law. See 42 U.S.C. § 2000cc–5(4). It offers broad protection to institutionalized persons by
prohibiting substantial burdens on their religious exercise. § 2000cc–3(g).
extends to “any exercise of religion, whether or not compelled by, or central to, a system of
religious belief.” § 2000cc–5(7)(A). However, RLUIPA does not provide a cause of action for
money damages against officials in their individual capacity, see Nelson v. Miller, 570 F.3d 868,
886–89 (7th Cir. 2009), or official capacity, see Sossamon v. Texas, 563 U.S. 277, 280 (2011).
Therefore, Plaintiff may not pursue a claim for money damages against any Defendant under
RLUIPA. Instead, the Court will allow him to proceed with a request for injunctive relief against
Defendants Mueller, Baldwin, and Keim whom he has already named in their official capacities
for this purpose. However, although Plaintiff has also named all other defendants in their official
capacities, there is no allegation that these individuals are actually responsible for the policies at
issue. As these defendants are not responsible for the policies at issue, they cannot be held liable
in their official capacities, and any claim under RLUIPA against them must be dismissed due to
the prohibition on receiving monetary damages under RLUIPA. To the extent that Plaintiff has
an official capacity claim against anyone other than Mueller, Baldwin, and Keim, those claims
In addition, the Court must dismiss Plaintiff's IRFRA claim against all Defendants. Like
RLUIPA, the IRFRA provides that the government may not “substantially burden a person's
exercise of religion, even if the burden results from a rule of general applicability, unless it
demonstrates that application of the burden to the person (i) is in furtherance of a compelling
governmental interest and (ii) is the least restrictive means of furthering that compelling
governmental interest.” 775 ILCS § 35/15. However, the Illinois Court of Claims has exclusive
jurisdiction over IRFRA claims. See Wallace v. Miller, No. 09-cv-342-JPG, 2014 WL 552885,
at *2 (S.D. Ill. Feb. 12, 2014). A suit against a public employee in his official capacity is a suit
against the state, and the Illinois Court of Claims has “exclusive jurisdiction of all claims”
against the state founded upon any law of the State of Illinois. See Nelson, 570 F.3d at 885; 705
ILCS § 505/8(a).
Likewise, federal district courts have barred individual-capacity IRFRA
claims, holding that IRFRA claims against state employees are in effect claims against the state.
See Wilkins v. Walker, No. 09-cv-457-MJR-SCW, 2012 WL 253442, at *3 (S.D.Ill. Jan. 26,
2012) (collecting cases). Under the circumstances, all of Plaintiff’s IRFRA claims shall be
dismissed without prejudice to Plaintiff re-filing this claim in the Illinois Court of Claims.
In Count 3 Plaintiff has also listed Gale Heimgardtner, the chaplain who originally
approved of his cross, as a defendant. Approving the cross initially states no claim, and Plaintiff
has pleaded no facts tending to show that Heimgardtner was personally involved in the ultimate
confiscation of Plaintiff’s cross, so Heimgardtner will be dismissed without prejudice.
Plaintiff has articulated viable retaliation claims in Counts 4-6. 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).
In Count 4, Plaintiff alleges that McQuarrie, Walker, Waggoner, Toennies, and Mueller
retaliated against him for attempting to join the Sangraal litigation. A review of the Court’s
docket shows that Plaintiff filed a motion seeking joinder as a plaintiff in that case on October
24, 2016. (Case No. 14-661, Doc. 119). Litigating legitimate claims is protected conduct, and
Plaintiff’s participation in the Sangraal lawsuit was that of an interested party. Plaintiff alleges
that the very next day, a Wiccan symbol that he had been wearing without incident or censure for
6 months was confiscated. The timing is suggestive of retaliation, and Plaintiff’s claim will
The same reasoning applies to Count 5. Plaintiff has alleged that Farthing tossed his
cell, and while he did so, he made derogatory comments about Plaintiff’s religion. Plaintiff
alleges that Farthing choose to focus on Plaintiff’s possessions because of Plaintiff’s religion.
Plaintiff’s religious practices are protected First Amendment conduct, and to the extent that
Farthing singled him out for harassment such conduct could be retaliatory.
At this stage,
Plaintiff has articulated a valid claim against Farthing in Count 5.
However, it appears that Plaintiff is also trying to say that Meier retaliated against him.
Plaintiff has not alleged that Meier took any action that affected Plaintiff. Plaintiff’s theory
appears to be that Meier should have conducted the cell shakedown on January 7th because he
was assigned to those duties that day. This is insufficient to state a claim against Meier. As an
initial matter, the failure of prison officers to follow their own regulations and guidelines does
not state a constitutional claim. See Whitman v. Nesic, 368 F.3d 931, 935 n. 1 (7th Cir. 2004);
Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003) (§ 1983 provides a remedy for
constitutional violations, not violations of state statutes and regulations). Even if conducting cell
shakedowns was part of Meier’s duties and not Farthing’s, Meier’s failure to conduct them states
no claim because it is merely a violation of internal prison regulations. Additionally, Plaintiff
has not adequately stated a claim against Meier for retaliation standing alone. He has not alleged
that Meier knew he was a Wiccan or that he took any action adverse to Plaintiff at all. Meier
will be dismissed from this action without prejudice for failure to state a claim.
In Count 6, Plaintiff alleges that he was further retaliated against by other prison officials
when he was disciplined as a result of Farthing’s cell inspection. Plaintiff alleges that Burton
denied that Plaintiff’s prayer stones were legitimate during his hearing, and subsequently
punished him for possessing them. It is a plausible inference from these facts that Burton was
disciplining Plaintiff on the basis of his religion in violation of the First Amendment.
Additionally, Plaintiff has alleged that Rupert, Wegman, Mueller, and Baldwin either signed off
on the discipline or refused to intervene when alerted to the possible constitutional violation. At
the pleading stages, that is sufficient to make an allegation that Rupert, Wegman, Mueller, and
Baldwin were personally involved, and so Count 6 shall proceed against Burton, Rupert,
Wegman, Mueller, and Baldwin.
The remainder of Plaintiff’s claims must be dismissed at this time. Plaintiff has alleged
that his exercise of religion was further burdened by a change in schedule that was difficult for
the computer system to handle. However, Plaintiff has not alleged that he actually missed any
services as a result of the schedule changes. He has said it is more difficult for the guards to
know who is scheduled for services, but he has not said that it is impossible. These facts state no
claim, and Count 7 will be dismissed without prejudice. If Plaintiff wishes to allege more facts,
he may move to file an amended complaint raising them.
Count 8 is similar to the claims in Count 6, as it also centers on the disciplinary
proceedings that occurred after Plaintiff’s allegedly improper cell search. A plaintiff states a due
process claim when the state deprives him of a constitutionally protected interest in “life, liberty,
or property” without due process of law. Zinermon v. Burch, 494 U.S. 113, 125 (1990). Here
Plaintiff has no due process claim because he only received B-grade status as a result of the
discipline, and a prisoner has no liberty interest in his status. Whitford v. Boglino, 63 F.3d 527,
533 n. 7 (7th Cir. 1995). Therefore, Count 8 will be dismissed with prejudice as legally
Finally, in Count 9, Plaintiff has alleged that the law librarian confiscated an email in his
possession between 2 IDOC employees regarding the confiscation of Witches’ Craft, and that
Mueller supported her action. The Seventh Circuit uses a two-part test to decide if prison
administrators have violated the right of access to the courts. Lehn v. Holmes, 364 F.3d 862, 868
(7th Cir. 2004). First, the prisoner must show that prison officials interfered with his legal
materials. Devbrow v. Gallegos, 735 F.3d 584, 587 (7th Cir. 2013) (citing Lewis v. Casey, 518
U.S. 343, 348 (1996)). Second, he must be able to show “some quantum of detriment caused by
the challenged conduct of state officials resulting in the interruption and/or delay of plaintiff’s
pending or contemplated litigation.” Alston v. DeBruyn, 13 F.3d 1036, 1041 (7th Cir. 1994); see
also Lehn, 364 F. 3d at 868. That means that a detriment must exist, a detriment resulting from
illegal conduct that affects litigation. It does not mean that any delay is a detriment. Kincaid v.
Vail, 969 F.2d 594, 603 (7th Cir. 1992), cert. denied, 506 U.S. 1062 (1993). As relevant to the
allegations here, temporary confiscation of documents, without more, fails to demonstrate a
violation of the Constitution. Devbrow, 735 F.3d at 587; Hossman v. Spradlin, 812 F.2d 1019,
1022 (7th Cir. 1987). Regardless of the length of an alleged delay, a prisoner must show actual
substantial prejudice to specific litigation. Kincaid, 969 F.2d at 603.
To state a claim, a plaintiff must explain “the connection between the alleged denial of
access to legal materials and an inability to pursue a legitimate challenge to a conviction,
sentence, or prison conditions,” Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009) (internal
quotation and citation omitted); accord Guajardo-Palma v. Martinson, 622 F.3d 801, 805-06
(7th Cir. 2010). This requires Plaintiff to identify the underlying claim that was lost. See
Christopher v. Harbury, 536 U.S. 403, 416 (2002); Steidl v. Fermon, 494 F.3d 623, 633 (7th Cir.
Here Plaintiff has not been able to point to a lost claim It is possible that Plaintiff was
photocopying the document for use in this case, but not having it at this point does not prejudice
him in the slightest. Plaintiff will be able to seek discovery against defendants after they have
answered and the Court has entered a scheduling order. He can request the documents formally
at that time, and seek Court intervention in the event relevant documents are not produced to
him. Having suffered no prejudice or deteriment in any action, Plaintiff fails to state a claim in
Count 9. Count 9 will be dismissed without prejudice for failure to state a claim. Millner and
Dille will be dismissed without prejudice from this action.
Count 10 will be dismissed with prejudice as legally frivolous. Plaintiff alleges that the
Administrative Review Board was the wrong body to hear his grievances raising religious issues.
As discussed above with reference to Plaintiff’s allegation that officers did not follow their
assigned roles when they shook down his cell, prisoners have no constitutional right to see that
administrative rules and guidelines are followed. See Whitman v. Nesic, 368 F.3d 931, 935 n. 1
(7th Cir. 2004); Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003) (§ 1983 provides a remedy
for constitutional violations, not violations of state statutes and regulations). Even if Plaintiff is
correct and his grievances should have been referred to others for disposition, such conduct does
not give him a legally cognizable right.
Plaintiff has also named Lt. Holton and Assistant Warden Kink as defendants in this
action, along with a general allegation that they are responsible for training and supervision.
Plaintiff has not included Holton and Kink in his statement of claim, and the mere mention of
their alleged responsibilities does not state a plausible constitutional violation.
The reason that plaintiffs, even those proceeding pro se, for whom the Court is required
to liberally construe complaints, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), are required
to associate specific defendants with specific claims is so these defendants are put on notice of
the claims brought against them and so they can properly answer the complaint. “Federal Rule
of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that
the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is
and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Thus, where a plaintiff has not included a
defendant in his statement of the claim, the defendant cannot be said to be adequately put on
notice of which claims in the complaint, if any, are directed against him. Furthermore, merely
invoking the name of a potential defendant is not sufficient to state a claim against that
individual. See Collins 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.”).
Because Plaintiff has not listed Defendants Holton and Kink elsewhere in his complaint,
he has not adequately stated claims against these individuals, or put them on notice of any claims
that Plaintiff may have against them. For this reason, Defendants Holton and Kink will be
dismissed from this action without prejudice.
Plaintiff’s Motion to Appoint Counsel will be addressed by separate order by Magistrate
Judge Stephen C. Williams. (Doc. 3).
Plaintiff has been granted leave to proceed in forma pauperis. (Doc. 6). Pursuant to Fed.
R. Civ. P. 4(c)(3), the court must order service for those that have been granted plead to proceed
in forma pauperis.
Plaintiff’s Motion is therefore MOOT because the Court is already
compelled to order service. (Doc. 4).
Plaintiff has requested certification of a class of “offenders in the Illinois Department of
Corrections, past, present, and future that are part of the Pagan religions, including but not
limited to Wicca and Odinism.” (Doc. 8, p. 1). Despite this request for class certification, no
other Plaintiff appears to be involved in this action. No one else is listed as a Plaintiff in the case
caption or appears to have participated in drafting the pleadings or filing the lawsuit. Many of
Plaintiff’s allegations are specific to him alone, i.e. his allegations about the cell shakedown and
subsequent discipline. Further, a prisoner bringing a pro se action cannot represent a class of
plaintiffs. See Lewis v. Lenc–Smith Mfg. Co., 784 F.2d 829, 831 (7th Cir.1986); Fed. R. Civ. P.
11. Under the circumstances, Plaintiff's request for class certification is DENIED without
prejudice. (Doc. 8).
IT IS HEREBY ORDERED that Counts 1-6 survive threshold review. Counts 7 and 9
will be DISMISSED without prejudice for failure to state a claim. Defendants Millner, Dille,
Meier, Heimgardtner, Holton, and Kink will be DISMISSED without prejudice. Plaintiff’s
IRFRA claims are DISMISSED without prejudice to Plaintiff refiling those claims in state
court. Counts 8 and 10 will be DISMISSED with prejudice as legally frivolous. Plaintiff’s
Motion for Service of Process at Government Expense is MOOT. (Doc. 4). Plaintiff’s Motion
to Classify as a Class Action is DENIED without prejudice. (Doc. 8).
IT IS ORDERED that the Clerk of Court shall prepare for Defendants Mueller, Baldwin,
Boehler, Keim, Waggoner, Farthing, Burton, McQuarrie, Voss, Gebke, Christianson, Toennies,
Wegman, Walker, and Rupert: (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.
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.
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 United States Magistrate
Judge Stephen C. Williams for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Stephen C.
Williams 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).
IT IS SO ORDERED.
DATED: October 25, 2017
s/ MICHAEL J. REAGAN
U.S. Chief District Judge
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