Morrow v. Baldwin et al
Filing
9
ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge David R. Herndon on 5/17/2018. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MITCHELL MORROW,
#B76693,
Plaintiff,
vs.
JOHN BALDWIN,
S. A. GODINEZ,
MICHAEL P. RANDLE,
ROBERT MUELLER,
SUSAN WALKER,
DEBBIE KNAUER,
GLADYSE C. TAYLOR,
and JOHN/JANE DOE (Superintendents
of the Illinois Correctional Industry),
Defendants.
Case No. 18-cv-00908-DRH
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff Mitchell Morrow, an inmate who is currently incarcerated at
Centralia Correctional Center (“Centralia”), brings this civil rights action pursuant
to 42 U.S.C. § 1983. In the Complaint, Plaintiff claims that Defendants have been
deliberately indifferent to the health risks posed by juice served to inmates in the
Illinois Department of Corrections. (Doc. 3, pp. 3-7). Plaintiff claims that the
juice contains high levels of benzene, a carcinogen that may also cause other
health problems. Id.
1
According to the allegations, Defendants knowingly served Plaintiff this
juice for more than ten years. (Doc. 3, pp. 3-7). During this same time period, he
experienced hypertension, dizziness, headaches, and an irregular heartbeat, all of
which he attributes to his involuntary consumption of benzene. Id. Plaintiff now
brings Eighth Amendment claims against the defendants. (Doc. 3, pp. 7-8). He
seeks declaratory judgment and monetary damages against these individuals.
(Doc. 3, pp. 8-9).
Plaintiff originally filed this action with another inmate, Sean Wilkins.
Wilkins, et al. v. Baldwin, et al., No. 18-cv-00471-DRH (S.D. Ill.) (“original case”).
Plaintiff Morrow’s claims were severed into the instant action at his request on
April 11, 2018. (Doc. 1, instant case). Although Wilkins and Morrow opted to
proceed in separate actions, they relied on the same Complaint in support of their
Eighth Amendment claims against the defendants. (Doc. 1, original case; Doc. 3,
instant case). In addition, both Plaintiffs filed motions to consolidate their cases
with a 2017 case filed by another Centralia prisoner-plaintiff, Trainor v. Baldwin,
Case No. 17-cv-00369-DRH-DGW. (Doc. 7, original case; Doc. 6, instant case).
All three cases address virtually the same claims.
This case is now before the Court for preliminary review of the Complaint
(Doc. 3) 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.
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(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).
The Complaint survives screening under these standards.
The Complaint
In the Complaint, Plaintiff brings claims against the current and former
Directors of the Illinois Department of Corrections (“IDOC”), including Director
John Baldwin and former Directors S. A. Godinez, Michael P. Randle, and
Gladyse C. Taylor. (Doc. 3, pp. 1-2). He also names Robert Mueller (Centralia’s
warden), Susan Walker (grievance officer), and Debbie Knauer (Administrative
Review
Board
(“A.R.B.”)
official),
as
3
well
as
a
number
of
unknown
Superintendents of the Illinois Correctional Industry (“ICI”), dietary managers,
and wardens (“John/Jane Doe”) who distributed contaminated juices to IDOC
prisons. (Doc. 3, p. 2).
According to the allegations in the Complaint, the Food and Drug
Administration issued a report in 1991 which indicated that benzene had been
found in products containing a combination of sodium benzoate, ascorbic acid,
citric acid, and/or erythorbic acid. (Doc. 3, p. 3). Because this combination of
ingredients can produce benzene, the FDA “called on manufacturers to take
measures to impede the formation of benzene in their products.”
Id.
The
Environmental Protection Agency reported that 5 parts per billion was the
maximum acceptable level of benzene in drinking water. Id. Individuals exposed
to higher levels of benzene, even for short periods of time, were at risk of
developing anemia, nervous system disorders, and immune system depression.
(Doc. 3, pp. 4-5). A report published by the Center for Disease Controls stated
that exposure to benzene may cause dizziness, rapid or irregular heartbeat,
vomiting, convulsions, sleepiness, and stomach irritation. (Doc. 3, pp. 4, 19-20).
In 2008, union members working within the IDOC raised concerns about
benzene in drink products served to IDOC employees. (Doc. 3, p. 3). Defendants
Randle, Godinez, Baldwin, Mueller, or the John/Jane Doe (wardens and dietary
managers) never investigated these concerns. Id. Defendants John/Jane Doe (ICI
Superintendents) continued to use the combination of ingredients listed above in
beverages served to IDOC inmates. Id.
4
Plaintiff consumed the allegedly contaminated juices for more than ten
years during his confinement at Menard, Lawrence, and Centralia Correctional
Centers. (Doc. 3, p. 5). During this time period, he experienced hypertension,
dizziness, headaches, and an irregular heartbeat, among other symptoms. (Doc.
3, pp. 5, 7). Plaintiff alleges that these symptoms may have resulted from his
involuntary consumption of benzene. (Doc. 3, p. 5). He was diagnosed with and
treated for several of these symptoms. Id. He still receives treatment for them.
Id.
When Plaintiff learned about the risks associated with the excessive
consumption of benzene, he filed a grievance seeking an investigation. (Doc. 3,
pp. 3-5). Plaintiff asked Grievance Officer Walker to discontinue these beverages
because they contain benzene, which is a carcinogen. (Doc. 3, p. 4). Although the
grievance officer acknowledged that the juices contain ascorbic acid and sodium
benzoate, a combination that produces benzene, she nevertheless denied the
grievance and stated that the juices are “not harmful.”
Id.
Warden Mueller
affirmed her decision. Id. Plaintiff appealed the decision to Defendant Knauer,
who denied the appeal. (Doc. 3, pp. 6).
Around the same time, the prison temporarily stopped serving juices
containing the benzene-producing ingredients. (Doc. 3, pp. 5-6). However, the
change was short-lived.
Id.
Defendants Mueller and John/Jane Doe (dietary
manager) soon resumed the practice of serving the juices to inmates. Id.
Plaintiff claims that Defendants Baldwin, Godinez, Taylor, Randle, and all
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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. 3, 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. Defendants Baldwin, Godinez, Taylor, and
Randle did nothing to address the health risks. Id. Plaintiff maintains that he
was involuntarily exposed to benzene in the juices served with prison meals
without any warning of the hazard.
(Doc. 3, p. 7).
His juice consumption
allegedly created an unreasonable risk to his present and future health. Id.
Plaintiff asserts that Defendants’ actions violated the Eighth Amendment.
He seeks declaratory and monetary relief. (Doc. 3, 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:
Count 1:
Eighth Amendment claim against the Defendants
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 Defendants 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 Defendants Mueller,
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
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ingredients that may produce benzene;
Count 4: Eighth Amendment claim against Defendants 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.
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.
As discussed in more detail below, Counts 1, 2, and 3 survive screening
and shall receive further review. However, Count 4 does not survive preliminary
review and shall be dismissed for failure to state a claim upon which relief may be
granted.
Official Capacity Claims
Plaintiff sues Defendants Baldwin, Mueller, Walker, Knauer, and John/Jane
Doe (ICI Superintendents, dietary managers, and wardens) in their individual and
official capacities.
He is seeking only monetary relief, however, and has not
requested injunctive relief.
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
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damages). Therefore, any claim for damages that survives threshold review may
only proceed against these defendants in their individual capacities. All official
capacity claims against these defendants 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 that is 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)). An Eighth
Amendment claim for unconstitutional conditions of confinement consists of two
elements. To satisfy the objective element, a plaintiff is required to show that the
conditions denied 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, 452 U.S. at 347.
“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 cause physical, psychological, or probabilistic harm. Thomas
v. Illinois, 697 F.3d 612, 614-15 (7th Cir. 2012).
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To satisfy the subjective element of an Eighth Amendment claim, the
plaintiff must establish that each defendant acted with a 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 well-settled that mere
negligence is not enough. See, e.g., Davidson v. Cannon, 474 U.S. 344, 347-48
(1986).
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 and the general population, no
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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 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 juice that
was allegedly tainted with benzene, including, but not limited to, hypertension,
dizziness, headaches, and an irregular heartbeat. (Doc. 3, p. 5). He also notes
that the long-term consumption of this juice may lead to future health problems,
such as cancer. (Doc. 3, p. 7). These symptoms and potential future health risks
arguably meet the objective requirement of an Eighth Amendment claim.
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,
10
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 cases 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.
Carter, No. 99-C-3304, 1999 WL 966099, at *2-3 (N.D. Ill. Oct. 13, 1999)
(collecting cases). However, Plaintiff points to documentation of actual harm and
risks of harm to humans from ingesting benzene, which may develop from the
components in the prison juice products.
(Doc. 3, p. 3).
He claims to have
suffered physical symptoms after consuming the juice and raises a claim for
possible future harm due to long-term exposure.
(Doc. 3, pp. 3-5, 7-8).
Furthermore, Plaintiff claims that he could not avoid the risk posed by juice
products for a long period of time because he was unaware of the risk and had no
opportunity to avoid the risk by choosing another product. At this early stage of
the case, 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.
11
Count 1 – John/Jane Doe ICI Superintendents
According to Plaintiff, the ICI Superintendents have known about the
dangers associated with benzene since approximately 1998. (Doc. 3, p. 6). He
claims that despite this knowledge, they took no steps to ensure their products
were not dangerous. Id. Instead, they continued to manufacture and distribute
these products to prisoners for many years. Id. These allegations support an
Eighth Amendment claim at this stage of the case.
Because Plaintiff has identified several distinct sub-groups of John/Jane
Does, the Court shall designate Defendants John/Jane Doe (ICI Superintendents)
as Unknown Party #1 (John/Jane Doe ICI Superintendents)1 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 and former IDOC Directors, including
Director Baldwin and former Directors Godinez, Taylor, and Randle, liable for
1
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
deliberate indifference to a known risk of harm from benzene in the juice drinks
served in IDOC prisons. He claims that Defendants 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. 3, p. 6).
Plaintiff has sufficiently alleged that Defendants Baldwin, Godinez, Taylor,
and Randle knew about the potential danger to inmates from consuming juice
containing chemicals that could produce benzene, but took no action. (Doc. 3, 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 Defendants 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 by IDOC union employees in 2008. (Doc. 3, pp. 3, 6).
Defendants Mueller and the Centralia Jane/John Doe Dietary Manager stopped
serving the juice products at some point but resumed the practice after a short
time. (Doc. 3, p. 6). Defendant Mueller allegedly reviewed and concurred with the
denial of Plaintiff’s grievance about this issue.
Id.
Despite their alleged
knowledge of the hazards of benzene, these defendants did nothing to mitigate the
13
risks to inmates from consuming the drinks. Id.
At this stage, Plaintiff has met the basic pleading requirements to state a
claim against Defendants Mueller, John/Jane Doe (Wardens), and John/Jane Doe
(Dietary Managers).
As previously explained, the Court shall designate these
unknown defendants as Unknown 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
Finally, Plaintiff sues Defendant Walker (Centralia grievance officer) and
Knauer (A.R.B. official), both of whom reviewed and denied Plaintiff’s grievance
concerning the alleged dangers of the juices being served at Centralia. However,
the Complaint does not allege that either of these defendants had any knowledge
of the hazards of consuming benzene or had any involvement in the decisions
regarding what beverages would be served in Centralia or other prisons. (Doc. 3,
pp. 5-6). Their only role was to review and deny Plaintiff’s grievance. Id.
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,
14
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
(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 Defendants Walker and Knauer
rejected or denied his grievances that address the misconduct of other prison
officials.
This does not constitute personal involvement sufficient to sustain a
deliberate indifference claim. Therefore, Count 4 against Defendants 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.
15
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
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 at 832. 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. As well, discovery may be directed to the current ICI Superintendent.
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
16
v. Baldwin, Case No. 17-cv-369-DRH-DGW (Doc. 6) shall be REFERRED to the
United States Magistrate Judge for further consideration.
Disposition
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.
IT IS HEREBY ORDERED that COUNTS 1, 2, and 3 survive screening and
are subject to further review.
This includes COUNT 1 against Defendants
UNKNOWN PARTY #1 (John/Jane Doe ICI Superintendents), in their
individual capacities; COUNT 2 against Defendants BALDWIN, GODINEZ,
TAYLOR, and RANDLE, in their individual capacities; and COUNT 3 against
Defendants MUELLER, UNKNOWN PARTY #2 (John/Jane Doe Wardens), and
UNKNOWN PARTY #3 (John/Jane Doe Dietary Managers), in their individual
capacities.
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
17
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 (Doc. 3),
and this Memorandum and Order to each Defendant’s place of employment as
identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service
of Summons (Form 6) to the Clerk within 30 days from the date the forms were
sent, the Clerk shall take appropriate steps to effect formal service on that
Defendant, and the Court will require that Defendant to pay the full costs of
formal service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work
address provided by Plaintiff, the employer shall furnish the Clerk with the
Defendant’s current work address, or, if not known, the Defendant’s last-known
address. This information shall be used only for sending the forms as directed
above or for formally effecting service. Any documentation of the address shall be
retained only by the Clerk. Address information shall not be maintained in the
court file or disclosed by the Clerk.
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
18
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 and a decision on the Motion to Consolidate Cases (Doc. 6).
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.
§ 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
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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
2018.05.17
21:22:34 -05'00'
United States District Judge
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