Jenkins v. United States Postal Service et al
Filing
22
ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge J. Phil Gilbert on 4/18/2018. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTWIN D. JENKINS,
#09778-025,
)
)
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Plaintiff,
)
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vs.
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UNITED STATES POSTAL SERVICE,
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UNITED STATES MARSHAL SERVICE, )
WHITE COUNTY JAIL EMPLOYEES,
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WHITE COUNTY JAIL SHERIFF,
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and RANDY COBB,
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Defendants.
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Case No. 17-cv-00937-JPG
MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Antwin Jenkins is currently confined in White County Jail (“Jail”) located in
Carmi, Illinois. He has been housed there on a federal holdover since July 24, 2017. Plaintiff
brings this action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of
Fed’l Bureau of Narcotics, 403 U.S. 388 (1971), in order to challenge various aspects of his
confinement at the Jail. (Doc. 21). He seeks monetary damages against the defendants. (Doc.
21, p. 6). Plaintiff’s Second Amended Complaint1 is now before the Court for preliminary
review under 28 U.S.C. § 1915A, which provides:
1
Plaintiff filed his original Complaint on August 31, 2017. (Doc. 1). Before the Court screened it, he
filed a Motion to Amend Complaint on September 18, 2017. (Doc. 6). The Court denied the Motion the
following day because the proposed amendment was piecemeal. (Doc. 8). Plaintiff was granted leave to
file a complete First Amended Complaint on or before October 17, 2017. Id. Prior to the deadline, he
filed a Motion for Leave to File First Amended Complaint (Doc. 11) and a complete First Amended
Complaint. The Court granted Plaintiff’s Motion in an Order dated October 31, 2017. (Doc. 16).
However, just two weeks later on November 13, 2017, Plaintiff requested leave to file another amended
complaint, again relying on a piecemeal amendment. (Doc. 17). The Court denied the motion on
November 15, 2017, and ordered Plaintiff to file a complete Second Amended Complaint no later than
1
(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.
(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.
28 U.S.C. § 1915A. 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).
Second Amended Complaint
Plaintiff brings five claims against the defendants for conduct that began in July 2017.
(Doc. 21). He complains that the defendants interfered with his mail, denied him outdoor
recreational opportunities, denied him access to an electronic law library, and deprived him of
adequate nutrition. Id. A summary of the allegations offered in support of each claim is set forth
below.
December 13, 2017. (Doc. 18). Plaintiff complied with this Order by filing the Second Amended
Complaint that is now before the Court for preliminary review. (Doc. 21).
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1.
Interference with Legal Mail
Plaintiff alleges that his legal mail was photocopied and distributed to members of the
Jail’s staff without his permission on at least one occasion. (Doc. 21, p. 5). On August 23, 2017,
Randy Cobb (Jail administrator) and Officer Hamblin (non-party) called Plaintiff out of his cell
to speak with him. Id. Cobb informed Plaintiff that the Jail’s staff members were aware of the
complaint he filed against them in federal court. Id. Cobb asked Plaintiff to withdraw it. Id.
At the time, Plaintiff noticed that Cobb was holding a copy of the complaint. (Doc. 21, p.
5). He recalled asking an unknown officer to photocopy his “legal mail” the previous night, but
Plaintiff did not grant the officer permission to make and distribute additional copies to staff. Id.
Plaintiff maintains that the officer’s decision to interfere with his legal mail without his
permission violated his constitutional rights. Id.
2.
Denial of Outdoor Recreation
Plaintiff also claims that he has been denied all opportunities for outdoor recreation since
he arrived at the Jail on July 24, 2017. (Doc. 21, p. 5). He is confined in a cell with 9 adult men
for 24 hours per day. Id. The cell is the size of a single car garage, and Plaintiff describes it as
overcrowded. Id. He cannot exercise in the cell because it is too small and too hot. Id. The
only time he is allowed outside is for court hearings and medical appointments. Id. Plaintiff
suffers from asthma and claims that the denial of fresh air makes it difficult to breathe. Id. His
joints have become stiff. Id. In addition, Plaintiff lacks the vitamins and nutrients provided by
sunlight. Id.
He asked Cobb to authorize outdoor recreation for the federal inmates who are housed at
the Jail. (Doc. 21, p. 5). However, Cobb told him that the Jail is “federally controlled” by the
United States Marshal Service, and an unnamed supervisory official informed Cobb that
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“[f]ederal inmates were not to rec[ei]ve recreation.” Id. Plaintiff maintains that federal inmates
in administrative detention and segregation are generally allowed to have at least one hour of
outdoor recreation. Id. Given that he is not housed in segregation or administrative detention,
Plaintiff claims that the denial of recreation amounts to cruel and unusual punishment. Id.
3.
Inadequate Law Library
Plaintiff next challenges the lack of legal resources at the Jail. (Doc. 21, p. 5). He is
unaware of any federally funded holding facility located in the federal judicial district for the
Southern District of Illinois that is equipped with an electronic law library. Id. However,
Plaintiff points out that federal detention centers usually provide inmates with access to case law,
federal court rules, and other legal materials. Id. The Jail does not. Id. As a result, Plaintiff is
unable to research “his civil case.” Id. The lack of adequate legal resources allegedly violates
Plaintiff’s right to due process of law. Id.
4.
Inadequate Diet
Plaintiff also complains about the Jail’s diet. (Doc. 21-1, p. 1). Cobb has authorized “a
consistent diet of unhealthy food.” Id. Each day, inmates are routinely served a single bowl of
cereal for breakfast, a microwavable sandwich and small bag of potato chips for lunch, and a
microwavable “t.v. dinner” each night. Id. Under Illinois law, Plaintiff claims that county jails
are required to “rotate their menu every 90 days.” Id. However, the Jail’s menu has not changed
since Plaintiff arrived at the Jail on July 24, 2017. Id. Plaintiff adds that the food is “often
outdated and molded.” (Doc. 21-1, p. 2).
Plaintiff and other federal inmates have spoken with Cobb about the menu on several
occasions. (Doc. 21-1, p. 5). Each time, he promises to change the menu. Id. However, Cobb
never does. Id. Several federal inmates filed a joint complaint with Cobb on or around October
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12, 2017. Id. In it, they complained that the processed foods and mashed potatoes are unhealthy.
Id. The federal inmates requested fresh fruit or another “healthy alternative” at each meal. Id.
Plaintiff noted that some federal inmates receive fish, turkey, chicken, pulled pork, beans, fresh
fruit, and fresh vegetables. Id. He argues that the United States Government provides the Jail
with “more than enough funds to properly feed” federal inmates. Id. Cobb did not respond to
the complaint. Id. The County continues to “cut corners,” and the United States Marshal
Services has inspected and approved the menu. (Doc. 21-1, pp. 1-2). Plaintiff maintains that the
inadequate diet constitutes cruel and unusual punishment. (Doc. 21-1, p. 2).
5.
Interference with Personal Mail
Finally, Plaintiff complains about the interference with his personal mail by Jail officials.
(Doc. 21-1, p. 2). When he arrived at the Jail on July 24, 2017, Plaintiff was given a free phone
call. Id. During the recorded call, he gave family and friends his new address and informed
them to use the address to contact him by mail. Id. During the next few weeks and months,
Plaintiff learned that these family members and friends sent mail and money orders to him at the
new address. Id. Plaintiff did not receive any of this mail. Id.
On August 15, 2017, he complained to Cobb about the fact that he was not receiving his
mail. (Doc. 21-1, p. 2). Cobb did not respond. Id. Plaintiff then complained to an unknown
officer, who suggested that Plaintiff’s family and friends mailed the letters and money orders to
the wrong address. Id. Only after Plaintiff filed his lawsuit in federal court on August 28, 2017,
did he begin to receive his mail. Id. However, Plaintiff has still not received any mail that was
sent to him between the dates of July 24, 2017, and August 28, 2017. (Doc. 21-1, pp. 3-4). He
names White County Jail employees and the United States Postal Service (i.e., St. Louis,
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Missouri; Belleville, Illinois; Fairview Heights, Illinois; and Centralia, Illinois) in connection
with this claim. (Doc. 21-1, p. 4).
Discussion
The Court deems it appropriate to divide the pro se action into the following enumerated
counts to facilitate the orderly management of future proceedings in this case and in accordance
with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b):
Count 1 -
Jail Administrator Cobb and Officer Hamblin refused to stop the
widespread distribution of Plaintiff’s legal mail to staff by an
Unknown Jail Staff Member on or around August 23, 2017, unless
Plaintiff agreed to dismiss his federal suit, in violation of
Plaintiff’s constitutional rights.
Count 2 -
Jail Administrator Cobb, acting on the orders of an Unknown
United States Marshal Supervisor, refused to authorize any outdoor
recreation for federal inmates at the Jail, in violation of Plaintiff’s
constitutional rights.
Count 3 -
The United States Marshal Service and White County Jail Sheriff
offered Plaintiff inadequate access to legal materials, including an
electronic law library, in violation of Plaintiff’s constitutional
rights.
Count 4 -
Jail Administrator Cobb and the United States Marshal Service
endangered Plaintiff’s health by authorizing a steady diet of
unhealthy and old food, in violation of his constitutional rights.
Count 5 -
The United States Postal Service, United States Marshal Service,
and Unknown Jail Staff Members routinely interfered with
Plaintiff’s personal mail, and Jail Administrator Cobb took no
action to address the problem, in violation of Plaintiff’s
constitutional rights.
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. These designations do not constitute an
opinion regarding the merits of the above-referenced claims. Any other claims in the Second
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Amended Complaint that are not identified above are inadequately pled under Twombly and are
considered dismissed without prejudice from this action.
Preliminary Matters
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971). He refers to both in the Second Amended Complaint.
(Doc. 21, p. 1). This is presumably because Plaintiff names state and federal officials as
defendants.
Id.
Section 1983 imposes tort liability on state actors, and sometimes their
employers, for violations of federal rights. Belbachir v. County of McHenry, 726 F.3d 975, 978
(7th Cir. 2013). Bivens provides a private cause of action for damages against federal actors for
constitutional torts. Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (citing Corr. Serv. Corp. v.
Malesko, 534 U.S. 61, 66 (2001)). Put differently, a Bivens action is the federal corollary to a
§ 1983 action.
Liability under both § 1983 and Bivens hinges on personal involvement in a
constitutional deprivation. Ashcroft v. Iqbal, 556 U.S. at 676 (2009). Government officials may
not be held liable for the unconstitutional conduct of their subordinates under either § 1983 or
Bivens because the doctrine of respondeat superior is inapplicable in both contexts. Id. (citing
Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691 (1978) (finding no vicarious
liability for a municipal “person” under § 1983)). As the United States Supreme Court explained
in Iqbal, “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Id.
For this reason, Plaintiff cannot assert claims against poorly-defined groups of defendants
that include entire government agencies. Most of the defendants listed in the case caption fit into
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this category, including White County Jail Employees, the United States Postal Service, and the
United States Marshal Service. The Court is simply unable to discern who in these ill-defined
groups was personally involved in the deprivation of Plaintiff’s constitutional rights. Further, the
Court will not guess or make the decision for Plaintiff.
Defendants White County Jail
Employees, United States Postal Service, and United States Marshal Service shall be dismissed
from this action with prejudice.
This does not mean that Plaintiff’s claims are foreclosed against individuals who are
employed at White County Jail, the United States Postal Service, and the United States Marshal
Service. However, Plaintiff must re-plead his claims against the specific individuals who were
responsible for the deprivation of his constitutional rights or bring those claims in a separate
action altogether. If he does not know the names of particular individuals, he should simply refer
to each individual in generic terms in the case caption and throughout the statement of his claim
(e.g., “John Doe (Mailroom Employee #1)” or “Jane Doe (United States Marshal Service
Supervisor)”). Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). The
Court will then establish a plan and deadlines for identifying the unknown defendants with
specificity during the course of litigation.
The fact that Plaintiff may have already referred to individuals in generic terms or by
name in the statement of his claim is not enough, where he failed to identify them as defendants
in this action. These individuals include, but are not limited to, Officer Hamblin, Unknown
United States Marshal Supervisor, and various Unknown Jail Staff Members. When parties are
not listed in the caption, this Court will not treat them as defendants, and any claims against them
should be considered dismissed without prejudice. See FED. R. CIV. P. 10(a) (noting that the title
of the complaint “must name all the parties”); Myles v. United States, 416 F.3d 551, 551-52 (7th
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Cir. 2005) (holding that to be properly considered a party, a defendant must be “specif[ied] in the
caption”). All claims against these individuals are dismissed without prejudice to Plaintiff
pursuing relief against them by filing an amended complaint in this case, in which he names
them as defendants, or by bringing a separate action against them.
The Court now returns to the question of whether this suit is properly brought pursuant to
§ 1983 or Bivens.
The only remaining defendants are the White County Sheriff and Jail
Administrator Cobb. Claims against local officials are generally brought pursuant to § 1983,
even when raised by federal prisoners. See, e.g., Belbachir, 726 F.3d at 978 (contract between
the Federal Bureau of Prisons and a county jail does not automatically transform a state actor
into a federal officer). See also Hunter v. Amin, 583 F.3d 486 (7th Cir. 2009); Lewis v. Downey,
581 F.3d 467, 471 n. 3 (7th Cir. 2009); Ortiz v. Downey, 561 F.3d 664 (7th Cir. 2009); Grieveson
v. Anderson, 538 F.3d 763 (7th Cir. 2008); Porro v. Barnes, 624 F.3d 1322 (10th Cir. 2010);
Wilson v. Blankenship, 163 F.3d 1284 (11th Cir. 1998)) (allowing § 1983 claims by federal
prisoners to proceed against county or city employees). For purposes of this screening order, the
Court assumes, without deciding, that Plaintiff’s claims arise under § 1983.
Before considering each claim, the Court also notes that Plaintiff’s status as a pretrial
detainee or prisoner is unclear. The applicable legal standard for Plaintiff’s claims depends on
his status. This question cannot be answered by looking to the allegations in the Second
Amended Complaint. For purposes of this screening order, this question need not be answered.
Plaintiff’s status can be determined as the case proceeds.
Count 1
The allegations offered in support of Count 1 articulate a viable First Amendment claim
for retaliation against Jail Administrator Cobb, based on his refusal to stop the widespread
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distribution of Plaintiff’s legal mail among the Jail’s staff in retaliation for filing a federal suit
against Jail officials. To establish a prima facie case of retaliation, an inmate must produce
evidence that (1) he engaged in constitutionally protected speech, (2) he suffered a deprivation
likely to deter protected speech, and (3) his protected speech was a motivating factor in the
defendants’ actions. Antoine v. Ramos, 497 F. App’x 631, 634 (7th Cir. 2012). Filing a lawsuit
is considered protected activity under the First Amendment. Bridges v. Gilbert, 557 F.3d 541,
552 (7th Cir. 2009). An act taken in retaliation for protected activity under the First Amendment
violates the Constitution. Surita v. Hyd, 665 F.3d 860, 874 (7th Cir. 2011). The allegations
satisfy these requirements at screening. Accordingly, Count 1 shall receive further review
against Cobb.2
Count 2
Construed liberally, the allegations support an Eighth Amendment claim against Jail
Administrator Cobb for denying Plaintiff any opportunities to exercise outside of his crowded
cell. The Eighth Amendment to the United States Constitution prohibits cruel and unusual
punishment and applies to the states through the Due Process Clause of the Fourteenth
Amendment. Gillis v. Litscher, 468 F.3d 488, 491 (7th Cir. 2006) (citing Robinson v. California,
370 U.S. 600 (1962)). The Seventh Circuit has observed that “an unjustified, lengthy deprivation
of opportunity for out-of-cell exercise ‘could reasonably be described as cruel and, by reference
to the current norms of American prisons, unusual.’” Winger v. Pierce, 325 F. App’x 435, *1
(7th Cir. 2009) (quoting Pearson v. Ramos, 237 F.3d 881, 884 (7th Cir. 2001)); see also Turley v.
Rednour, 729 F.3d 645, 652 (7th Cir. 2013) (finding that a “pattern of prison-wide lockdowns . .
. occur[ing] for flimsy reasons or no reason at all” may support a claim for the deprivation of
2
The potential claim against the Unknown Jail Staff Member and Officer Hamblin is dismissed without
prejudice, based on Plaintiff’s failure to identify either of these individuals as defendant in this action.
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exercise).
Further, the Seventh Circuit has repeatedly held that deprivations of outdoor
recreation support a claim under the Eighth Amendment. See, e.g., Delaney v. DeTella, 256 F.3d
679, 684 (7th Cir. 2001) (inmate denied yard access for six months suffered sufficient
constitutional deprivation); Pearson, 237 F.3d at 884-85 (7th Cir. 2001) (denial of yard
privileges for more than 90 days may be cognizable under Eighth Amendment); see also Perkins
v. Kan. Dep’t of Corr., 165 F.3d 803, 810 (10th Cir. 1999) (nine-month denial of outdoor
exercise states Eighth Amendment claim). The length of Plaintiff’s deprivation is unclear at this
point. However, Plaintiff allegedly complained directly to Cobb about the adverse impact the
denial of outdoor exercise had on him. Plaintiff asked Cobb for access to outdoor exercise
opportunities, and Cobb denied his request.3 Although the Court takes no position regarding the
ultimate merits of this claim, Plaintiff shall be allowed to proceed with the Eighth Amendment
claim in Count 2 against Cobb.
Count 3
The allegations state no claim for denial of access to adequate legal materials, including
an electronic law library, against the Sheriff.4 “[T]he mere denial of access to a prison law
library or to other legal materials is not itself a violation of a prisoner’s rights; his right is to
access the courts, and only if the defendants’ conduct prejudices a potentially meritorious
challenge to the prisoner’s conviction, sentence, or conditions of confinement has this right been
infringed.” Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006). A prisoner’s complaint must
“spell out, in minimal detail, 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
3
As already explained above, Plaintiff’s claim against the Unknown United States Marshal Service
Supervisor who allegedly authorized the denial of all outdoor exercise to federal inmates fails because
Plaintiff did not name this individual (even in generic terms) in the case caption of the complaint.
4
Plaintiff also named the entire United States Marshal Service in connection with this claim. As
previously stated, this defendant is dismissed without prejudice from this action.
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conditions.” Id. Plaintiff offers the Court no insight into a potentially meritorious claim that was
lost or impeded because he lacked sufficient legal resources, including an electronic law library,
at the Jail. Accordingly, Count 3 shall be dismissed without prejudice for failure to state a claim
upon which relief may be granted.
Count 4
The Court will also allow Plaintiff’s inadequate nutrition claim to proceed at this time.
Prison conditions that deprive inmates of basic human needs, such as inadequate nutrition,
health, or safety, may constitute cruel and unusual punishment under the Eighth Amendment.
Rhodes v. Chapman, 452 U.S. 337, 346 (1981); see also James v. Milwaukee Cnty., 956 F.2d
696, 699 (7th Cir. 1992). The Constitution requires prison officials to provide inmates with
“nutritionally adequate food that is prepared and served under conditions which do not present an
immediate danger to the health and well-being of the inmates who consume it.” French v.
Owens, 777 F.2d 1250, 1255 (7th Cir. 1985). Plaintiff alleges that Cobb authorized a steady diet
of old and unhealthy food, despite the known negative health consequences associated with the
diet. Plaintiff and other inmates filed a written complaint with Cobb, without any success. In the
Eighth Amendment context, an inmate’s “correspondence to a prison administrator may . . .
establish a basis for personal liability under § 1983 where that correspondence provides
sufficient knowledge of a constitutional deprivation.” Perez, 792 F.3d at 777-78 (citing Vance v.
Peters, 97 F.3d 987, 992-93 (7th Cir. 1996)). Given Plaintiff’s efforts to put Cobb on notice of
his objections to the health risks to Plaintiff posed by the Jail’s diet, the Court cannot dismiss this
claim against the defendant at this time. Count 4 shall receive further review against Jail
Administrator Cobb.
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Count 5
The allegations support a First Amendment claim against Jail Administrator Cobb for
failing to address the routine interference with the plaintiff’s mail by Jail staff. Plaintiff alleges
that he notified Cobb of the regular denial of his mail, and Cobb chose to do nothing. The First
Amendment “applies to communications between an inmate and an outsider.” Zimmerman v.
Tribble, 226 F.3d 568, 572 (7th Cir. 2000).
A valid mail interference claim requires an
allegation that there has been “a continuing pattern or repeated occurrences” of denial or delay of
mail delivery. Id. The occasional disruption or short-term delays in mail service will not violate
the Constitution. Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999); Sizemore v. Wiliford, 829,
F.2d 608, 610 (7th Cir. 1987))). In this case, Plaintiff alleges that he was denied access to his
mail beginning in July 2017 and did not begin receiving any mail at all until he filed a suit in
federal court. Even then, he was unable to recover the mail he was denied prior to the date he
filed his federal suit. Despite notifying Cobb of this issue, the Jail administrator took no action.
At this stage, Count 5 cannot be dismissed against Cobb.
Pending Motion
Plaintiff’s Motion to Appoint Counsel (Doc. 5) shall be REFERRED to a United States
Magistrate Judge for a decision.
Disposition
IT IS HEREBY ORDERED that Defendants UNITED STATES POSTAL SERVICE,
UNITED STATES MARSHAL SERVICE, and WHITE COUNTY JAIL EMPLOYEES are
DISMISSED from this action with prejudice and Defendant WHITE COUNTY JAIL
SHERIFF is DISMISSED without prejudice because the Second Amended Complaint fails to
state any claim against these defendants upon which relief may be granted.
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IT IS ORDERED that COUNT 3 is DISMISSED without prejudice for failure to state a
claim upon which relief may be granted.
IT IS ORDERED that COUNTS 1, 2, 4, and 5 are subject to further review against
Defendant RANDY COBB. As to COUNTS 1, 2, 4, and 5, the Clerk of Court shall prepare for
the Defendant: (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 Second Amended Complaint (Doc. 21), and this Memorandum and Order to the
Defendant’s place of employment as identified by Plaintiff. If the 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 the Defendant,
and the Court will require the 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.
Defendant is ORDERED to timely file an appropriate responsive pleading to the Second
Amended Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United States
Magistrate Judge for further pre-trial proceedings, including a decision regarding Plaintiff’s
Motion to Appoint Counsel (Doc. 5).
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Further, this entire matter shall be REFERRED to a United States Magistrate Judge
for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to
such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, despite the fact that
his application to proceed in forma pauperis was 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: April 18, 2018
s/J. Phil Gilbert
United States District Judge
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