Eastman v. Doe et al

Filing 11

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. IT IS HEREBY ORDERED that COUNTS 3, 4, and 5, which are unrelated to the other claims in this action, are SEVERED into a new case against SANTOS, MUELLER, KINK, STOCK, KREBS, DOWNES, JOHNSON, MCABEE, WALKER, ZELASKO, WEGMAN, LAHR, WEXFORD, and IDOC. (Action due by 4/26/2018). Signed by Judge David R. Herndon on 3/22/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JEFFREY EASTMAN,
#S12167,
Plaintiff,

Case No. 18-cv-543-DRH

vs.
JOHN DOE,
VENERIO SANTOS,
ROBERT MUELLER,
WARDEN KINK,
WARDEN STOCK,
LISA KREBS,
SGT. DOWNES,
MAJOR JOHNSON,
MAJOR MCABEE,
WALKER,
DEBORAH ZELASKO,
ROBERT WEGMAN,
ANN LAHR,
WEXFORD HEALTH, and
ILLINOIS DEPARTMENT OF
CORRECTIONS,
Defendants.

MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Jeffrey Eastman, an inmate in Taylorville Correctional Center,
brings this action pursuant to 42 U.S.C. § 1983 for deprivations of his
constitutional rights that allegedly occurred at Big Muddy River Correctional
Center (“Big Muddy”) and Centralia Correctional Center (“Centralia”).

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In his

Complaint, Plaintiff claims the defendants have been deliberately indifferent to his
serious medical issues in violation of the Eighth Amendment and have failed to
accommodate his disabilities. (Doc. 1). This case is now before the Court for a
preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A, which
provides:
(a) Screening – The court shall review, before docketing, if feasible
or, in any event, as soon as practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim
on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Frivolousness is an

objective standard that refers to a claim that any reasonable person would find
meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action
fails to state a claim upon which relief can be granted if it does not plead “enough
facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

The claim of entitlement to relief must

cross “the line between possibility and plausibility.” Id. at 557. At this juncture,
the factual allegations of the pro se complaint are to be liberally construed. See
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
As a part of screening, the Court is also allowed to sever unrelated claims

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against different defendants into separate lawsuits. See George v. Smith, 507
F.3d 605, 607 (7th Cir. 2007). In George, the Seventh Circuit emphasized that
the practice of severance is important, “not only to prevent the sort of morass”
produced by multi-claim, multi-defendant suits “but also to ensure that prisoners
pay the required filing fees” under the Prison Litigation Reform Act. Id. This
practice is encouraged. The Seventh Circuit Court of Appeals has recently warned
district courts not to allow inmates “to flout the rules for joining claims and
defendants, see FED. R. CIV. P. 18, 20, or to circumvent the Prison Litigation
Reform Act’s fee requirements by combining multiple lawsuits into a single
complaint.” Owens v. Godinez, 860 F.3d 434, 436 (7th Cir. 2017). See also
Wheeler v. Talbot, 695 F. App’x 151 (7th Cir. 2017) (district court should have
severed unrelated and improperly joined claims or dismissed one of them).
Consistent with George, Owens, and Wheeler, unrelated claims will be severed
into new cases, given new case numbers, and assessed separate filing fees.
The Complaint
In his Complaint (Doc. 1), Plaintiff makes the following allegations: Plaintiff
was born with a medical condition that causes the bones of his feet and ankles to
collapse out of alignment when weight is put on them. (Doc. 1, p. 24). This
misalignment and malformation causes Plaintiff’s bones to bear weight in an
unnatural way, and as a result, Plaintiff has difficulty walking. Id. This condition
“causes extreme pain and discomfort that is only alleviated if [Plaintiff is] wearing
braces that hold the ankles and feet in correct alignment.” Id. Plaintiff suffers

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from three types of pain: stabbing pain when he puts weight on his feet and
ankles without corrective footwear; a dull, throbbing, burning pain that started in
February 2015 and continues; and a sharp, sudden, stabbing, debilitating pain
that began in March 2016 and occurs without warning when Plaintiff does not
have something to support himself with, such as a cane.

Id.

This pain has

caused Plaintiff to fall many times. Id.
As a child, Plaintiff wore custom-fitted orthopedic braces until he was
approximately 12-years old. Id. While Plaintiff was imprisoned at Big Muddy,
Defendant Dr. John Doe prescribed him foam insoles, which he received August
20, 2014. Id. After he was transferred to Centralia, Plaintiff received medical layins after suffering injuries on March 5, 2016 and April 11, 2016. Id. Dr. Santos
issued Plaintiff the same type of foam insoles on March 5, 2016 after his first
injury. Id. Dr. Santos ordered an X-ray after the April 11, 2016 injury. Id. The
X-ray “showed the presence and progression of permanent damage/arthritis in the
same areas affected by [Plaintiff’s] medical condition.” Id.
Dr. Garcia issued Plaintiff a slow-walker pass on September 21, 2016 and
prescribed Plaintiff ACE wraps. Id. On October 26, 2016, Garcia renewed the
slow-walker pass and issued Plaintiff a “No Prolonged Standing Order.” Id. On
November 9, 2016, Garcia referred Plaintiff back to Dr. Santos for orthopedic
shoes, but Santos denied them. Id. Garcia recommended orthopedic shoes on
March 15, 2017. Id. Santos issued Plaintiff AFO braces on July 3, 2017, which
Plaintiff received on July 17, 2017. Id. Santos also issued Plaintiff gel insoles on

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August 18, 2017. (Doc. 1, p. 25). Dr. Baker issued Plaintiff a cane and ordered
X-rays on September 22, 2017.

Id.

These X-rays showed “bi-lateral flat feet

deformity.” Baker ordered lace-up ankle supports on November 28, 2017, which
Plaintiff received on February 8, 2018. Id.
All of the medical devices issued by the Illinois Department of Corrections
(“IDOC”) and Wexford have no corrective ability. Id. The insoles and gel do not
provide ankle support or correct the ankles or arches. Id. The AFO braces are
not designed for Plaintiff’s medical condition and do not correct his bone
alignment. Id. The ACE wraps are also not corrective but instead “simply wrap
around the foot.” Id. The lace-up supports provide stiff support for Plaintiff’s
ankles but do not correct the alignment of his ankles or arches and “so are
ineffective against [his] medical condition.” Id.
From October 2011 until July 2014, Plaintiff’s complaints regarding his
medical condition were ignored, as were his requests to see an orthopedic
specialist. Id. These requests and complaints were directed at John Doe. (Doc.
1, p. 33). Then from October 2014 to November 2015 when Plaintiff complained
that his foam insoles were ineffective, he was also ignored. (Doc. 1, p. 25). These
events took place at Big Muddy. Id.
At Centralia, Dr. Santos refused Plaintiff pain medication on two separate
occasions. Id. During every visit with Santos after his March 5, 2016 fall, on at
least 11 occasions, Plaintiff asked for and was denied a mobility aid to prevent
falls, orthopedic shoes, and an exam with an orthopedic specialist. Id. Even after

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Dr. Garcia recommended orthopedic shoes, and after Plaintiff complained of falls,
Santos insisted on issuing Plaintiff foam insoles knowing that he was already
wearing the same insoles when he was injured.

Id.

Santos also would not

schedule Plaintiff for any type of rehabilitation services after discovering that
Plaintiff had arthritis. Id.
Lisa Krebs, the Health Care Unit administrator, refused to intervene and
allow Plaintiff to be seen by an orthopedic specialist. Id. She also refused to
investigate Plaintiff’s claims of ineffective treatment, and she lied in her written
response to Plaintiff, which was later used to deny Plaintiff relief in a grievance.
Id. Warden Mueller failed to investigate Plaintiff’s claims of medical malpractice
and deliberate indifference against Santos, as well as Plaintiff’s claims “of medical
device interference by a black box device against Majors Johnson and McAbee.”
(Doc. 1, p. 26). He also refused to intervene and stop these alleged abuses. Id.
Warden Kink and Warden Stock refused to investigate Plaintiff’s claims of medical
device interference by a black box device, and refused to intervene and stop these
alleged abuses. Id.
Sgt. Downes forced Plaintiff to stand against medical orders, “resulting in
11 falls and near-falls, and he also sadistically laughed about a comment he made
of ‘kicking [Plaintiff’s] legs out from under [him].’” Id. He could have allowed
Plaintiff to sit down at a stone bench feet away from where he was standing. Id.
Johnson and McAbee ignored Plaintiff’s medical needs by forcing him to
wear a black box device though it prevented Plaintiff from being able to use his

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cane. Id. They also refused to swap the black box for waist chains, which would
have allowed Plaintiff to use his cane, or the cane for a wheelchair, which would
have enabled the black box device to be used. Id. These solutions would have
prevented unnecessary pain and suffering. Id. Plaintiff had a “near-fall as a result
of Major McAbee’s order to use the black box device on Tuesday, October 10,
2017. Major Johnson’s unconstitutional order was made on Wednesday, October
4, 2017.” Id.
Counselors Walker, Zelasko, and Wegman, along with Lahr, refused to
allow Plaintiff’s grievances to be reviewed by an ADA Coordinator. Id. Lahr also
refused to investigate Plaintiff’s claims in the two grievances that she reviewed. Id.
“Because of the rules and regulations as stated, Counselors Walker, Deborah
Zelasko, and Robert Wegman, along with Ann Lahr, were not permitted to review
and answer [Plaintiff’s] grievances.” Id.
Wexford “knowingly employs officials who have a track record for not
providing the correct type of care, or outright refusing to provide care at all, for
serious medical needs.” Id. IDOC allowed employees and contractors to ignore
Plaintiff’s medical needs.

Id.

As a result of his condition and the pain he

experiences walking, Plaintiff has missed meals, religious services, recreational
periods, job assignment opportunities, mental health services, and other general
activities. (Doc. 1, p. 28).
Plaintiff requests a preliminary and permanent injunction requiring that he
be seen by an orthopedic specialist, that he receive corrective orthopedic shoes,

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and that he be allowed to work “any job assignment that [he] otherwise qualif[ies]
for.” (Doc. 1, p. 30). Plaintiff also seeks declaratory and monetary relief. (Doc. 1,
pp. 30-31).
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into 5 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 regarding their merit.
Count 1 –

While Plaintiff was at Big Muddy, John Doe showed deliberate
indifference to Plaintiff’s serious medical need involving a
deformity and arthritis in his feet and pain associated
therewith in violation of the Eighth Amendment.

Count 2 –

While Plaintiff was at Big Muddy, John Doe committed Illinois
medical malpractice/negligence in his treatment of a deformity
and arthritis in Plaintiff’s feet and pain associated therewith.

Count 3 –

Santos, Mueller, Kink, Stock, Krebs, Downes, Johnson,
McAbee, Walker, Zelasko, Wegman, Lahr, Wexford, and IDOC
showed deliberate indifference to Plaintiff’s serious medical
need involving a deformity and arthritis in his feet and pain
associated therewith in violation of the Eighth Amendment.

Count 4 –

Santos, Mueller, Kink, Stock, Krebs, Downes, Johnson,
McAbee, Walker, Zelasko, Wegman, Lahr, Wexford, and IDOC
committed Illinois medical malpractice/negligence in their
treatment or handling of a deformity and arthritis in Plaintiff’s
feet and pain associated therewith.

Count 5 –

IDOC violated the Americans with Disabilities Act and the
Rehabilitation Act by failing to accommodate Plaintiff’s needs

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related to a deformity and arthritis in his feet.1
As discussed in more detail below, Count 1 will be allowed to proceed past
threshold, Count 2 will be dismissed without prejudice, and Counts 3, 4, and 5
will be severed from this action.

Any other intended claim that has not been

recognized by the Court is considered dismissed without prejudice as
inadequately pleaded under the Twombly pleading standard.
Severance
Counts 3, 4, and 5 represent a set of claims unrelated to Counts 1 and 2.
Counts 1 and 2 are against John Doe and stem from events that took place at Big
Muddy, whereas Counts 3, 4, and 5 are against different defendants and arose
largely at Centralia. Consistent with the George decision and Federal Rule of Civil
Procedure 21, the Court shall sever Counts 3, 4, and 5 into a separate action, and
shall open a new case with a newly-assigned case number for those claims. A
separate merits review shall be conducted in the severed case after it is opened
and assigned to a judge. Plaintiff shall be assessed a new filing fee for the severed
case.
Count 1
The Eighth Amendment

to

the

United

States

Constitution

protects

prisoners from cruel and unusual punishment. See Berry v. Peterman, 604 F.3d

1

Plaintiff has indicated a desire to bring Americans with Disabilities Act and Rehabilitation
Act claims against other defendants in this action, but the only proper defendant in a claim under
the ADA or Rehabilitation Act is the state agency (or a state official acting in his or her official
capacity). “[E]mployees of the Department of Corrections are not amenable to suit under the
Rehabilitation Act or the ADA. See 29 U.S.C. § 794(b); 42 U.S.C. § 12131.” Jaros v. Illinois Dep’t
of Corrections, 684 F.3d 667, 670 (7th Cir. 2012) (additional citations omitted).

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435 (7th Cir. 2010).

The Supreme Court has recognized that “deliberate

indifference to serious medical needs of prisoners” may constitute cruel and
unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); see Erickson
v. Pardus, 551 U.S. 89, 94 (2006) (per curiam).

To state a claim, a prisoner

must show that: (1) he suffered from an objectively serious medical need; and
(2) state officials acted with deliberate indifference to the prisoner’s medical need,
which is a subjective standard. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
The Seventh Circuit has held that a medical need is “serious” where it has
either “been diagnosed by a physician as mandating treatment” or where the need
is “so obvious that even a lay person would easily recognize the necessity for a
doctor’s attention.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
Plaintiff’s deformity and arthritis described in the Complaint satisfies the
objective component of Count 1 for screening purposes. However, the analysis of
these claims does not end there.
The Complaint must also satisfy the subjective component of these claims.
To do so, the Complaint must suggest that John Doe exhibited deliberate
indifference to Plaintiff’s serious medical need.

Deliberate indifference is

established when prison officials “know of and disregard an excessive risk to
inmate health” by being “‘aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists’” and “‘draw[ing] the inference.’”
Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005) (quoting Farmer, 511 U.S. at
834).

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This standard is satisfied with respect to Count 1 against John Doe.
According to the Complaint, John Doe ignored many of Plaintiff’s requests for
medical care. (Doc. 1, p. 33). He also refused to allow Plaintiff to be examined by
a qualified specialist or issue Plaintiff proper orthopedic shoes and instead issued
him foam insoles, though he knew or should have known that they were useless to
treat Plaintiff’s condition. Id.

These allegations support a claim of deliberate

indifference under Count 1 against John Doe.
Count 2
Plaintiff also brings state law claims of medical malpractice against John
Doe, based on the same conduct detailed above.

Where a district court has

original jurisdiction over a civil action such as a § 1983 claim, it also has
supplemental jurisdiction over related state law claims pursuant to 28 U.S.C. §
1367(a), so long as the state claims “derive from a common nucleus of operative
fact” with the original federal claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d
921, 936 (7th Cir. 2008).

“A loose factual connection is generally sufficient.”

Houskins v. Sheahan, 549 F.3d 480, 495 (7th Cir. 2008) (citing Baer v. First
Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)). While this Court
has supplemental jurisdiction over these state-law claims pursuant to 28 U.S.C. §
1367, this is not the end of the matter.
Under Illinois law, a Plaintiff “[i]n any action, whether in tort, contract or
otherwise, in which the plaintiff seeks damages for injuries or death by reason of
medical, hospital, or other healing art malpractice,” must file an affidavit along

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with the complaint, declaring one of the following: 1) that the affiant has consulted
and reviewed the facts of the case with a qualified health professional who has
reviewed the claim and made a written report that the claim is reasonable and
meritorious (and the written report must be attached to the affidavit); 2) that the
affiant was unable to obtain such a consultation before the expiration of the
statute of limitations, and affiant has not previously voluntarily dismissed an
action based on the same claim (and in this case, the required written report shall
be filed within 90 days after the filing of the complaint); or 3) that the plaintiff has
made a request for records but the respondent has not complied within 60 days
of receipt of the request (and in this case the written report shall be filed within
90 days of receipt of the records).

See 735 ILL. COMP. STAT. §5/2-622(a).

A

separate affidavit and report shall be filed as to each defendant. See 735 ILL.
COMP. STAT. §5/2-622(b).
Failure to file the required certificate is grounds for dismissal of the claim.
See 735 ILL. COMP. STAT. § 5/2-622(g); Sherrod v. Lingle, 223 F.3d 605, 613 (7th
Cir. 2000). However, whether such dismissal should be with or without prejudice
is up to the sound discretion of the court. Sherrod, 223 F.3d at 614. “Illinois
courts have held that when a plaintiff fails to attach a certificate and report, then
‘a sound exercise of discretion mandates that [the plaintiff] be at least afforded an
opportunity to amend her complaint to comply with section 2-622 before her
action is dismissed with prejudice.’” Id.; see also Chapman v. Chandra, Case No.
06-cv-651-MJR, 2007 WL 1655799, at *4-5 (S.D. Ill. June 5, 2007).

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In the instant case, Plaintiff has failed to file the necessary affidavits or
reports.

Therefore, the claim in Count 2 shall be dismissed.

However, the

dismissal shall be without prejudice at this time, and Plaintiff shall be allowed 35
days to file the required affidavit(s), if he desires to seek reinstatement of this
claim.

The certificate(s) of merit must also be filed, in accordance with the

applicable section of §5/2-622(a). Should Plaintiff fail to timely file the required
affidavits/certificates, the dismissal of Count 2 may become a dismissal with
prejudice.
Injunctive Relief
In the request for relief in the Complaint, in relevant part, Plaintiff seeks “a
preliminary [and permanent] injunction to be seen by an orthopedic specialist, to
receive orthopedic shoes capable of correcting [his] medical condition, and to be
allowed to work any job assignment that [he] otherwise qualif[ies] for and [is]
physically capable of performing.” (Doc. 1, p. 30).
In order to obtain preliminary injunctive relief, Plaintiff must demonstrate
that: (1) his underlying case has some likelihood of success on the merits; (2) no
adequate remedy at law exists, and; (3) Plaintiff will suffer irreparable harm
without the injunction. Woods v. Buss, 496 F.3d 620, 622 (7th Cir. 2007). If
those three factors are shown, the district court must then balance the harm to
each party and to the public interest from granting or denying the injunction. Id.;
Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013).
Plaintiff has not explained how he is at risk of suffering irreparable harm

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without preliminary relief.

He has allegedly been receiving inadequate care in

prison since 2011, so the alleged deprivations do not appear to be new or urgent.
See (Doc. 1, p. 31). Plaintiff is also no longer incarcerated at Big Muddy, the
prison where the claims in Counts 1 and 2 arose, or Centralia, from which the
claims in the severed case stem. “[W]hen a prisoner who seeks injunctive relief for
a condition specific to a particular prison is transferred out of that prison, the
need for relief, and hence the prisoner’s claim, become moot.” Lehn v. Holmes,
364 F.3d 862, 871 (7th Cir. 2004). See also Higgason v. Farley, 83 F.3d 807,
811 (7th Cir. 1995). Further, the warden of the prison where alleged deprivations
are ongoing is often the proper defendant for requests for injunctive relief. See
Gonzales v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). Plaintiff is currently
incarcerated at Taylorville Correctional Center, and Taylorville’s warden is not a
defendant in this case.
Accordingly, Plaintiff’s request for a preliminary injunction is DENIED
without prejudice. If Plaintiff believes he still requires injunctive relief despite his
transfer from Centralia and Big Muddy, he may request a preliminary injunction
by filing a separate motion pursuant to Federal Rule of Civil Procedure 65, in this
or the newly severed case, should he so choose. However, any claims Plaintiff
brings that involve defendants or events at Taylorville may be severed into a new
action pursuant to George and FED. R. CIV. P. 18 and 20.
Identification of Unknown Defendants
Plaintiff shall be allowed to proceed with Count 1 against John Doe.

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However, this defendant must be identified with particularity before service of the
Complaint can be made on him. Where a prisoner’s Complaint states specific
allegations describing conduct of an individual prison staff member sufficient to
raise a constitutional claim, but the name of that defendant is not known, the
prisoner should have the opportunity to engage in limited discovery to ascertain
the identity of that defendant.

Rodriguez v. Plymouth Ambulance Serv., 577

F.3d 816, 832 (7th Cir. 2009). In this case, the Warden of Big Muddy will be
added as a defendant, in his or her official capacity only, and he or she shall be
responsible for responding to discovery (formal or otherwise) aimed at identifying
John Doe. Guidelines for discovery will be set by the United States Magistrate
Judge. Once the name of John Doe is discovered, Plaintiff shall file a motion to
substitute the newly identified defendant in place of the generic designation in the
case caption and throughout the Complaint.
Pending Motions
Plaintiff’s Motion for Extension of Time to File Exhibit 1-A (Doc. 2) is
DENIED as moot. Plaintiff filed Exhibit 1-A on March 14, 2018. See (Doc. 7).
Plaintiff’s Motion to Appoint Counsel (Doc. 4) is REFERRED to a United
States Magistrate Judge for a decision.
Plaintiff's Motion for Service of Process at Government Expense (Doc. 5) is
DENIED as moot. Waivers of service of summons will be issued and served on
the defendants as ordered below. Plaintiff is advised that it is not necessary for a
litigant proceeding in forma pauperis to file a motion requesting service of

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process by the United States Marshal Service or other process server. The Clerk
will issue summons and the Court will direct service for any complaint that
passes preliminary review.
Disposition
The CLERK is DIRECTED to ADD in CM/ECF WARDEN OF BIG MUDDY
(official capacity only) as a defendant in this action.
IT IS HEREBY ORDERED that COUNTS 3, 4, and 5, which are unrelated
to the other claims in this action, are SEVERED into a new case against SANTOS,
MUELLER, KINK, STOCK, KREBS, DOWNES, JOHNSON, MCABEE, WALKER,
ZELASKO, WEGMAN, LAHR, WEXFORD, and IDOC.
The claims in the newly severed case shall be subject to screening pursuant
to 28 U.S.C. § 1915A after the new case number and judge assignment is made.
In the new case, the Clerk is DIRECTED to file the following documents:
This Memorandum and Order;
The Complaint (Doc. 1) and Exhibit (Doc. 7);
The Motion to Appoint Counsel (Doc. 4); and
The Motion for Leave to Proceed in forma pauperis (Doc. 3) and Prisoner
Trust Fund Account Statement (Doc. 9).
Plaintiff will be responsible for an additional $350 filing fee in the newly
severed case.2 No service shall be ordered in the severed case until the § 1915A
review is completed.
IT IS FURTHER ORDERED that the only claims remaining in this

2

Pursuant to 28 U.S.C. § 1914, effective May 1, 2013, an additional $50.00 administrative
fee is also to be assessed in all civil actions, unless pauper status is granted.

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action are Counts 1 and 2, though Count 2 is being dismissed without
prejudice herein.
IT IS FURTHER ORDERED that COUNT 1 will PROCEED against JOHN
DOE.
IT IS FURTHER ORDERED that COUNT 2 is DISMISSED without
prejudice for the reasons stated herein.
IT IS FURTHER ORDERED that if Plaintiff wishes to move the Court to
reinstate the medical malpractice/negligence claim(s) in COUNT 2 against John
Doe, Plaintiff shall file the required affidavit(s) pursuant to 735 Ill. Comp. Stat.
§5/2-622, within 35 days of the date of this order (on or before April 26, 2018).
Further, Plaintiff shall timely file the required written report(s)/certificate(s) of
merit from a qualified health professional, in compliance with §5/2-622. Should
Plaintiff fail to timely file the required affidavits or reports, the dismissal of
COUNT 2 may become a dismissal with prejudice.
IT IS FURTHER ORDERED that SANTOS, MUELLER, KINK, STOCK,
KREBS, DOWNES, JOHNSON, MCABEE, WALKER, ZELASKO, WEGMAN,
LAHR, WEXFORD, and IDOC are DISMISSED from this action with prejudice
for the reasons above.
IT IS FURTHER ORDERED that as to COUNT 1, the Clerk of Court shall
prepare for WARDEN OF BIG MUDDY (official capacity only) and JOHN DOE
(once identified): (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of
a Summons), and (2) Form 6 (Waiver of Service of Summons).
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The Clerk is

DIRECTED to mail these forms, a copy of the Complaint, and this Memorandum
and Order to the defendants’ place of employment as identified by Plaintiff. If one
of the defendants 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 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.
Service shall not be made on Defendant JOHN DOE until such time as
Plaintiff has identified him 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 name and service address for this individual.
Defendants are ORDERED to timely file an appropriate responsive pleading
to the Complaint and shall not waive filing a reply pursuant to 42 U.S.C. §
1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United

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States Magistrate Judge for further pre-trial proceedings, including a plan for
discovery aimed at identifying the unknown defendant with particularity. 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 Section 1915, Plaintiff will be required to pay the full
amount of the costs, despite the fact 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
2018.03.22 14:12:35
-05'00'
United States District Judge

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