Morrow et al v. Baldwin et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge David R. Herndon on 5/9/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SEAN WILKINS, # R-21191,
Plaintiff,
vs.

Case No. 18-cv-471-DRH

JOHN BALDWIN,
S.A. GODINEZ,
GLADYSE C. TAYLOR,
MICHAEL P. RANDLE,
ROBERT MUELLER,
SUSAN WALKER,
DEBBIE KNAUER,
and JOHN/JANE DOE
(Superintendents of
the Illinois Correctional Industry),
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff,

currently

incarcerated

at

Centralia

Correctional

Center

(“Centralia”), has brought this pro se civil rights action pursuant to 42 U.S.C. §
1983.

He claims that Defendants knowingly served beverages which were

contaminated with unsafe levels of benzene, in Centralia and other prisons, with
deliberate indifference to the risks to inmates’ health. Plaintiff alleges that as a
result, he has developed colitis and other physical symptoms.
Plaintiff originally filed this action jointly with fellow inmate Mitchell
Morrow. On April 11, 2018, Morrow’s claims were severed into a separate action,
Morrow v. Baldwin, Case No. 18-cv-908-DRH. (Doc. 6). Plaintiff has pointed out
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that the claims raised herein are largely duplicative of those raised in a 2017 case
by another Centralia prisoner-plaintiff, Trainor v. Baldwin, Case No. 17-cv-369DRH-DGW. (Doc. 7).
This case is now before the Court for a preliminary review of the Complaint
pursuant to 28 U.S.C. § 1915A. 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.

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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 Plaintiff’s claims
survive threshold review under § 1915A.
The Complaint
Plaintiff brings his claims against current Director of the Illinois
Department of Corrections (“IDOC”) Baldwin, as well as former IDOC Directors
Godinez, Randle, and Taylor.

(Doc. 1, pp. 1-2).

Other Defendants include

Centralia Warden Mueller, Grievance Officer Walker, Administrative Review Board
official Knauer, and a number of Jane/John Does.

This group of Unknown

Defendants encompasses Superintendents of the Illinois Correctional Industry
(“ICI”) who distributed contaminated juices to IDOC prisons, dietary managers
who served the juices, and wardens who supervised the prisons during the time
the beverages were distributed. (Doc. 1, p. 2).
According to Plaintiff, in 1991 the FDA reported that benzene had been
found in products which contained sodium benzoate along with ascorbic acid,

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citric acid, or erthoribic acid.

This combination of ingredients can produce

benzene, so the FDA “called on manufacturers to take measures to impede the
formation of benzene in their products.”

(Doc. 1, p. 3).

The Environmental

Protection Agency reported that 5 parts per billion was the maximum acceptable
level of benzene in drinking water. Id. Further, people exposed to higher levels of
benzene, even for short periods of time, may develop anemia, nervous system
disorders, and immune system depression. Id. A published CDC report states
that exposure to benzene may cause dizziness, rapid or irregular heartbeat,
vomiting, convulsions, sleepiness, and stomach irritation. (Doc. 1, pp. 4, 19-20).
In 2008, union members working within the IDOC raised concern about
benzene in drink products served to IDOC employees.

(Doc. 1, p. 3).

This

concern was never investigated by Randle, Godinez, Baldwin, Mueller, or the
John/Jane Doe Wardens and Dietary Managers.

The John/Jane Doe ICI

Superintendents continued to use the combination of ingredients listed above in
beverages served to IDOC inmates. Id.
Plaintiff consumed the allegedly contaminated juices for several years
during his confinement at Big Muddy River Correctional Center and Centralia,
where he worked in the dietary departments. (Doc. 1, pp. 5, 15). During these
times, he experienced blood in his stool, chronic headaches, diarrhea, stomach
irritation, and fatigue. Id. He sought medical treatment at both prisons, and was
eventually diagnosed with colitis, for which he is receiving treatment. (Doc. 1, pp.
5-6).

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When Plaintiff learned about the risks from excessive consumption of
benzene, he filed a grievance seeking an investigation. Walker (grievance officer)
rejected the request, and Warden Mueller affirmed that denial. (Doc. 1, p. 6).
Plaintiff appealed the grievance to Knauer, who also denied it, noting that Plaintiff
is receiving medical treatment.1 (Doc. 1, pp. 6, 18).
At some unspecified time, Mueller and the John Doe Centralia Dietary
Manager stopped serving the juices containing the benzene-producing ingredients,
but then began to serve them to inmates again. (Doc. 1, p. 6).
Plaintiff claims that Baldwin, Godinez, Taylor, Randle, and all John/Jane
Does “have known since 1998 about the research on the formation of benzene
through the combination of sodium benzoate and ascorbic acid, yet they failed to
ensure that their products did not contain benzene.”

(Doc. 1, p. 6).

The

John/Jane Does deliberately manufactured and distributed the juice products to
prisoners, despite knowing that they “would tend to contain unsafe benzene
levels, placing prisoners at risk.” Id. Baldwin, Godinez, Taylor, and Randle did
nothing to address the health risks.

Plaintiff was involuntarily exposed to

benzene in the juices served with prison meals, without any warning of the
hazard. The juice consumption created an unreasonable risk to his health, both
present and future. He alleges that benzene can cause cancer. (Doc. 1, pp. 7-8).
Plaintiff asserts that Defendants’ actions violated the Eighth Amendment.
He seeks declaratory relief, as well as compensatory and punitive damages. (Doc.

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The notation on the grievance response signed by Knauer actually reads: “Offender has received no
treatment for stomach irritation, diarrhea & headaches caused by juice served in dietary.” (Doc. 1, p. 18).

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1, pp. 8-9).
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: Eighth Amendment claim against the John/Jane Doe ICI
Superintendents, for deliberate indifference to the present and future
health risks to Plaintiff from consuming its juice drinks, which
contain ingredients that may produce benzene;
Count 2: Eighth Amendment claim against Baldwin, Godinez,
Taylor, and Randle, for deliberate indifference to the present and
future health risks to Plaintiff from consuming ICI-produced juice
drinks, which contain ingredients that may produce benzene;
Count 3:
Eighth Amendment claim against Mueller, and the
John/Jane Doe Wardens and John/Jane Doe Dietary Managers, for
deliberate indifference to the present and future health risks to
Plaintiff from consuming ICI-produced juice drinks, which contain
ingredients that may produce benzene;
Count 4: Eighth Amendment claim against Walker and Knauer, for
deliberate indifference to the present and future health risks to
Plaintiff from consuming ICI-produced juice drinks, which contain
ingredients that may produce benzene.
Accepting Plaintiff’s allegations as true, Counts 1, 2, and 3 shall proceed for
further review.

Plaintiff shall note that his claims against the John/Jane Doe

Defendants cannot go forward until one or more of these Unknown Party
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Defendants is identified by name. Count 4 shall be dismissed for failure to state a
claim upon which relief may be granted.
Official Capacity Claims
Plaintiff sues Baldwin, Mueller, Walker, Knauer, and the John/Jane Doe ICI
Superintendents, Dietary Managers, and Wardens in their individual and official
capacities.

He is seeking only damages, however, and has not requested

injunctive relief. Notably, state officials such as these Defendants are not subject
to a claim for money damages in their official capacities. The Supreme Court has
held that “neither a State nor its officials acting in their official capacities are
‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989).

See also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001)

(Eleventh Amendment bars suits against states in federal court for money
damages). Any claim for damages that survives threshold review, therefore, may
only proceed against these Defendants in their individual capacities. All claims
which Plaintiff seeks to pursue against any Defendant herein in his or her official
capacity shall be dismissed without prejudice.
Eighth Amendment Deliberate Indifference Claims
The Eighth Amendment prohibition on cruel and unusual punishment
forbids unnecessary and wanton infliction of pain, and punishment grossly
disproportionate to the severity of the crime. Rhodes v. Chapman, 452 U.S. 337,
346 (1981) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Two elements
are required to establish a violation of the Eighth Amendment’s cruel and unusual

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punishments clause with regards to any conditions of confinement in prison.
First, an objective element requires a showing that the conditions deny the inmate
“the minimal civilized measure of life’s necessities,” creating an excessive risk to
the inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
The objective conditions must have resulted in an unquestioned and serious
deprivation of basic human needs such as food, medical care, sanitation, or
physical safety. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). “An objectively
sufficiently serious risk, is one that society considers so grave that to expose any
unwilling individual to it would offend contemporary standards of decency.”
Christopher v. Buss, 384 F.3d 879, 882 (7th Cir. 2004) (internal quotations and
citations omitted). Depending on the severity, duration, nature of the risk, and
susceptibility of the inmate, prison conditions may violate the Eighth Amendment
if they caused either physical, psychological, or probabilistic harm. Thomas v.
Illinois, 697 F.3d 612, 614-15 (7th Cir. 2012).
The second requirement is a subjective element – establishing a defendant’s
culpable state of mind, which is deliberate indifference to a substantial risk of
serious harm to the inmate from those conditions. Farmer, 511 U.S. at 837, 842.
The deliberate indifference standard is satisfied if the plaintiff shows that the
prison official acted or failed to act despite the official’s knowledge of a substantial
risk of serious harm from the conditions. Farmer, 511 U.S. at 842. It is wellsettled that mere negligence is not enough. See, e.g., Davidson v. Cannon, 474
U.S. 344, 347-48 (1986).

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Occasional instances of food or water contamination in prison will not
support an Eighth Amendment deliberate indifference claim. See, e.g., McRoy v.
Aramark Correctional Servs., Inc., 268 F. App’x 479 (7th Cir. 2008) (no
deliberate indifference where inmate was served undercooked chicken on one
occasion, sour milk on six occasions, and spoiled sandwich meat on three
occasions, where inmate was offered replacement items when available, and no
further incidents occurred); Franklin v. True, 76 F.3d 381 (7th Cir. 1996)
(unpublished disposition) (concluding that one instance of food poisoning is
insufficient to state conditions-of-confinement claim); Hadley v. Dobucki, 59 F.3d
173, 1995 WL 364225 (7th Cir. 1995) (unpublished disposition) (occasional
“foreign objects” such as aluminum foil in prison food did not state an Eighth
Amendment claim). Likewise, where the health risks from consuming allegedly
tainted water are the same for prison inmates as for the general population, no
Eighth Amendment claim is stated. See Carroll v. DeTella, 255 F.3d 470, 472
(7th Cir. 2001) (the Constitution does not require a confining institution “to
provide a maximally safe environment, one completely free from pollution or
safety hazards”) (internal citation omitted); Lieberman v. Budz, Case No. 03-C2009, 2007 WL 1810493, at *9 (N.D. Ill. June 19, 2007) (inmate had no
cognizable claim for having to wash with and drink allegedly contaminated water
from same source as shared by non-prison population).
However, where a prisoner’s complaint indicates that prison officials were
aware of a pattern of ongoing incidents where inmates were injured by

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contaminated food, yet did nothing to mitigate the risk, a viable deliberate
indifference claim may be stated. See Green v. Beth, 663 F. App’x 471, 472 (7th
Cir. 2016) (district court should not have dismissed claims by plaintiff who
described an “ongoing” problem of injuries suffered by inmates from biting into
foreign objects in the food served in jail, and lack of action by defendants).
Here, Plaintiff describes symptoms he suffered after consuming the
allegedly benzene-tainted juice – blood in his stool, chronic headaches, diarrhea,
stomach irritation, and fatigue – and he believes his colitis may have resulted
from this exposure. He also notes that the long-term consumption of the juice
containing the components that produce benzene may lead to future health
problems, including a risk of cancer.

These symptoms and potential future

health risks arguably meet the objective requirement of an Eighth Amendment
claim, at least at this early pleading stage.
Few cases have been brought alleging that unsafe levels of benzene may be
found in drinks which contain sodium benzoate and ascorbic or other acids. See,
e.g., Gonzalez v. Pepsico, Inc., et al., 489 F. Supp. 2d 1233 (D. Kan. 2007)
(denying defendants’ motion to dismiss); Lamond v. Pepsico, Inc., et al., Case No.
CIV 06-3043, 2007 WL 1695401 (D.N.J. June 8, 2007). These have not resulted
in any definitive rulings on the matter. Analogous claims, based on prisoners’
unwitting consumption of drinks sweetened with saccharine (a possible
carcinogen) have been rejected because no proof existed that the substance was
detrimental to human health, and no present injury had been alleged. Tripp v.

10

Carter, No. 99-C-3304, 1999 WL 966099, at *2-3 (N.D. Ill. Oct. 13, 1999)
(collecting cases).

In Plaintiff’s case, however, he alleges that there is

documentation of actual harm and risks of harm to humans from ingesting
benzene, which may develop from the components in the prison juice products.
He claims to have suffered physical symptoms after consuming the juice, and
raises a claim for possible future harm due to long-term exposure. Furthermore,
he claims that for a lengthy period, he had no opportunity to avoid the risk by
choosing not to consume the products, because he had no knowledge of the risk.
At this early stage of the case, therefore, it would be inappropriate to conclude
that the ICI-produced juice products did not pose an objectively serious risk of
harm to Plaintiff.
The remaining question is whether any of the Defendants had the requisite
subjective knowledge of the risk to Plaintiff’s and other inmates’ health from these
products. Awareness of such a risk is necessary to support a claim for deliberate
indifference based on a Defendant’s failure to take any action to mitigate the risk.
Count 1 – John/Jane Doe ICI Superintendents
According to Plaintiff, the ICI superintendents have known about the danger
from the possible formation of benzene when sodium benzoate and ascorbic acid
are combined in products, since approximately 1998. He claims that despite this
knowledge, they did not take remedial steps to ensure their products were not
dangerous. (Doc. 1, p. 6). Instead, they continued to manufacture and distribute
these products to prisoners for many years. These allegations support an Eighth

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Amendment claim at this stage of the case.
Because Plaintiff has identified several distinct sub-groups of John/Jane
Doe Defendants, for clarity, the John/Jane Doe ICI Superintendents shall be
designated as Unknown Party #1 (John/Jane Doe ICI Superintendents)2 as this
case goes forward.
Count 1 survives review under § 1915A, and shall proceed against
Unknown Party #1 (John/Jane Doe ICI Superintendents) in their individual
capacities. The current ICI Superintendent shall be added as a party and service
shall be directed to him/her under that title. However, Plaintiff must identify any
former ICI Superintendents by name before the Complaint may be served on
them.
Count 2 – IDOC Directors
Plaintiff seeks to hold current IDOC Director Baldwin, as well as former
IDOC Directors Godinez, Taylor, and Randle, liable for deliberate indifference to a
known risk of harm from benzene in the juice drinks served in IDOC prisons. He
claims that Baldwin, Godinez, Taylor, and Randle knew about the risks posed by
the possibility of benzene in the drinks, but did nothing to mitigate the risks.
(Doc. 1, p. 6).
Plaintiff has sufficiently alleged that Baldwin, Godinez, Taylor, and Randle
knew about the potential danger to inmates from consuming juice containing

2

To facilitate the orderly progress of this action going forward, the Clerk shall be directed to rename the

Unknown Party Defendants as follows: Unknown Party #1 (John/Jane Doe ICI superintendents);
Unknown Party #2 (John/Jane Doe wardens); and Unknown Party #3 (John/Jane Doe dietary managers).
See FED. R. CIV. P. 21 (“the court may at any time, on just terms, add or drop a party”).

12

chemicals that could produce benzene, yet took no action. (Doc. 1, p. 6). At this
early juncture, he has stated a claim against these Defendants for potential
liability in their individual capacities.
Accordingly, Plaintiff may proceed with his claim for damages in Count 2
against Baldwin, Godinez, Taylor, and Randle in their individual capacities.
Count 3 – Wardens and Dietary Managers
Plaintiff claims that Warden Mueller and the Centralia Jane/John Doe
Dietary Manager, along with the other John/Jane Doe Wardens and Dietary
Managers, knew about the formation of benzene from ingredients found in the
prison drink products since 1998, and were also informed of concerns about
benzene in drink products when IDOC union employees raised the issue in 2008.
(Doc. 1, pp. 3, 6). Mueller and the Centralia Jane/John Doe Dietary Manager
stopped serving the juice products at some point, but then began to use them
again. (Doc. 1, p. 6). Mueller allegedly reviewed and concurred with the denial of
Plaintiff’s grievance in July 2017.

(Doc. 1, pp. 6, 17).

Despite their alleged

knowledge of the hazards of benzene, these Defendants did nothing to mitigate the
risks to inmates from consuming the drinks. (Doc. 1, p. 6).
Giving liberal construction to the Complaint, Plaintiff has met the basic
pleading requirements to state a claim against Mueller, the other John/Jane Doe
Wardens, and the John/Jane Doe Dietary Managers at this early stage. Again, as
noted above, in order to clarify the claims against each class of Unknown
Defendants going forward, the Court shall designate the Doe parties as Unknown

13

Party #2 (John/Jane Doe Wardens) and Unknown Party #3 (John/Jane Doe
Dietary Managers). See Fed. R. Civ. P. 21.
At this time, Count 3 survives review under § 1915A.
Dismissal of Count 4 – Grievance Officials
Lastly, Plaintiff sues Walker (Centralia Grievance Officer) and Knauer
(ARB), both of whom reviewed and denied Plaintiff’s July 2017 grievance over the
alleged dangers of the juices being served at Centralia. However, the Complaint
does not allege that Walker or Knauer had any knowledge of the hazards of
consuming benzene, or that either official had any involvement in the decisions
regarding what beverages would be served in Centralia or other prisons. (Doc. 1,
pp. 5-6). These Defendants’ only role was to review and deny Plaintiff’s grievance.
(Doc. 1, pp. 15-18).
A Defendant’s action or inaction in handling Plaintiff’s grievances does not
support an independent constitutional claim.

“[A] state’s inmate grievance

procedures do not give rise to a liberty interest protected by the Due Process
Clause.”

Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).

The

Constitution requires no procedure at all, and the failure of state prison officials
to follow their own procedures does not, of itself, violate the Constitution. Maust
v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091,
1100-01 (7th Cir. 1982).

The Seventh Circuit instructs that the alleged

mishandling of grievances “by persons who otherwise did not cause or participate
in the underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953

14

(7th Cir. 2011). See also Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir.
2008); George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Antonelli, 81 F.3d at
1430. In order to be held individually liable, “a defendant must be ‘personally
responsible for the deprivation of a constitutional right.’”

Sanville v.

McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State
Police, 251 F.3d 612, 651 (7th Cir. 2001)).
In this case, Plaintiff merely alleges that Walker and Knauer rejected or
denied his grievances – grievances that he filed to complain about the misconduct
of other prison officials. This does not constitute personal involvement sufficient
to sustain a deliberate indifference claim. Therefore, Count 4 against Walker and
Knauer shall be dismissed with prejudice.
Identification of Unknown Defendants
Plaintiff shall be allowed to proceed with Count 1 against Defendants
Unknown Party #1 (John/Jane Doe ICI Superintendents).

In this case, the

current ICI Superintendent may be served by directing service to him/her under
his/her official title, and the Clerk shall be directed to add the current ICI
Superintendent as a party. See FED. R. CIV. P. 21. However, any previous ICI
Superintendents must be identified with particularity before service of the
Complaint can be made on them.
Count 3 also survives dismissal, but the Complaint does not provide
sufficient information to determine which of the Unknown Party #2 (John/Jane
Doe Wardens) or Unknown Party #3 (John/Jane Doe Dietary Managers), at which

15

institutions, may be implicated in this claim. Accordingly, no service shall be
ordered for these 2 classes of John/Jane Doe Defendants until Plaintiff identifies
the individual Defendant(s) by name.
Where a prisoner’s Complaint states specific allegations describing conduct
of individual prison staff members sufficient to raise a constitutional claim, but
the names of those defendants are not known, the prisoner should have the
opportunity to engage in limited discovery to ascertain the identity of those
defendants. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th
Cir. 2009). In this case, IDOC Director Baldwin is already named as a Defendant,
and he shall be responsible for responding to discovery aimed at identifying these
unknown defendants.
Superintendent.

As well, discovery may be directed to the current ICI

Guidelines for discovery will be set by the United States

Magistrate Judge. Once the names of Defendants Unknown Party #1 (John/Jane
Doe ICI Superintendents), Unknown Party #2 (John/Jane Doe Wardens), and/or
Unknown Party #3 (John/Jane Doe Dietary Managers) are discovered, Plaintiff
shall file a motion to substitute each newly identified defendant in place of the
generic designations in the case caption and throughout the Complaint.
Pending Motion
Plaintiff’s motion to consolidate his case with the pending action in Trainor
v. Baldwin, Case No. 17-cv-369-DRH-DGW (Doc. 7) shall be referred to the
United States Magistrate Judge for further consideration.
Disposition

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The Clerk is DIRECTED to designate the Unknown Party Defendants as
follows:

UNKNOWN PARTY #1 (John/Jane Doe ICI Superintendents);

UNKNOWN PARTY #2 (John/Jane Doe Wardens); and UNKNOWN PARTY #3
(John/Jane Doe Dietary Managers). In addition, the Clerk is DIRECTED to add
as a Defendant the SUPERINTENDENT of the ILLINOIS CORRECTIONAL
INDUSTRIES.
COUNT 4 is DISMISSED with prejudice for failure to state a claim upon
which relief may be granted.
Defendants WALKER and KNAUER are DISMISSED from this action
without prejudice. All claims brought against the remaining Defendants in their
official capacities are DISMISSED without prejudice.
The Clerk of Court shall prepare for Defendants BALDWIN, GODINEZ,
RANDLE, TAYLOR, MUELLER, and the SUPERINTENDENT of the ILLINOIS
CORRECTIONAL INDUSTRIES: (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.
17

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.
Service shall not be made on UNKNOWN PARTY #1 (John/Jane Doe ICI
Superintendents); UNKNOWN PARTY #2 (John/Jane Doe Wardens); and
UNKNOWN PARTY #3 (John/Jane Doe Dietary Managers) until such time as
Plaintiff has identified them by name in a properly filed motion for substitution of
parties. Plaintiff is ADVISED that it is his responsibility to provide the Court with
the names and service addresses for these individuals.
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 Donald G. Wilkerson for further pre-trial proceedings,
including a plan for discovery aimed at identifying the unknown defendants with
particularity.
Further, this entire matter shall be REFERRED to the U.S. Magistrate
Judge Wilkerson for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C.
18

§ 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, notwithstanding that his application to proceed in forma pauperis has
been granted. See 28 U.S.C. § 1915(f)(2)(A).
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.

Judge Herndon
2018.05.09
08:17:59 -05'00'
United States District Judge

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