Harris v. Belford et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge Staci M. Yandle on 6/22/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH HARRIS, # B-89999,
Plaintiff,
vs.
J. BELFORD,
MAJOR ACKERS,
and JANE DOE NURSE,
Defendants.

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Case No. 18-cv-1062-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Joseph Harris, currently incarcerated at Pinckneyville Correctional Center
(“Pinckneyville”), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. He raises
claims of excessive force, denial of medical care, and retaliation. The Complaint is now before
the Court for a preliminary review pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner Complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). 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 must be dismissed. 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).

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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. 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 Joseph Harris makes the following allegations in the Complaint: On August 17,
2017, Plaintiff was locked inside his cell when Lt. Belford arrived and ordered him to “cuff up.”
(Doc. 6, p. 6). Plaintiff characterizes this as an “impossible and confusing order.” Id. Plaintiff
responded by pointing to the locked door and stating, “I’m riding it out with my homie on
cuffing-up. We do not have keys or cuffs.” Id. Without giving Plaintiff any further orders or

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instructions, Belford opened the cell’s chuckhole and sprayed Plaintiff with mace in his face,
nose, and eyes. Plaintiff claims that this action violated IDOC policy which requires an officer
to notify a shift commander, the Health Care department, obtain security staff support, and give 3
warnings before using mace on an inmate. (Doc. 6, p. 6).
The mace spray caused Plaintiff to suffer pain, partial blindness, difficulty breathing, and
fear. (Doc. 6, p. 7). He stumbled to the door and stuck his hands through the chuckhole “to
comply with the second order to cuff-up.” Id. Plaintiff then went to face the back of the cell as
ordered. While Plaintiff stood with his back to Belford, Belford sprayed more mace on the back
of Plaintiff’s head, neck, ears, hands, and arms. Id.
Immediately after these events, Plaintiff was “engaged in the protected conduct of
meaningfully accessing the court,” when Belford forced Plaintiff’s cuffed arms far above his
head. Belford jerked Plaintiff’s hands and continued to hold them high in the air while moving
Plaintiff from his cell in 4 House to 5 House, which was a long distance away. (Doc. 6, p. 7).
When they arrived at 5 House, Plaintiff asked Belford for a grievance form. Belford threatened
that if Plaintiff filed a grievance, he would “falsely accuse Plaintiff of refusing a direct order to
‘cuff-up’ and of grabbing [Belford’s] arm through the chuck-hole.” (Doc. 6, pp. 7-8). Belford
further threatened to have other officers “drown Plaintiff in mace and stomp his brains out.” Id.
In 5 House, Mendez 1 directed Belford to place Plaintiff into a “make-shift” holding cell,
where Plaintiff spent the next hour. (Doc. 6, p. 8). The cell lacked a sink, toilet, towels, and

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Plaintiff refers to Mendez as a defendant in his narrative (Doc. 6, p. 8). However, because Plaintiff did
not include Mendez as a party in the case caption or list of Defendants (Doc. 6, pp. 1-2), the Court will
not recognize a claim against him. 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 Cir. 2005) (holding that to be properly considered a party, a defendant
must be “specif[ied] in the caption”). If Plaintiff intended to bring a claim against Mendez, he must
submit an amended complaint, which will be subject to review under § 1915A.

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soap, making it impossible for Plaintiff to clean the mace off his body. The odor of mace, in
addition to his gasping for air, the flow of tears and mucous from his eyes and nose, and his
bruised and swollen wrists alerted the officers to his need for medical attention.
The Jane Doe Nurse briefly attended to Plaintiff while he was in the holding cell. She
saw his condition but only gave him 2 gauze pads, and did not refer him to a doctor. (Doc. 6, p.
8).
Major Ackers reviewed the disciplinary report filed against Plaintiff after the mace
incident noticed that it failed to comply with IDOC policy (Plaintiff does not explain the flaw).
(Doc. 6, p. 8). Ackers gave Belford approval to place Plaintiff in disciplinary segregation.
Later in the evening of August 17, 2017, Belford wrote a disciplinary report charging
Plaintiff with disobeying a direct order. (Doc. 6, pp. 8, 11). This report did not include any
charge that Plaintiff grabbed Belford’s arm.
Plaintiff filed a grievance against Belford over the mace incident. (Doc. 6, pp. 11-12).
When Belford responded to the grievance on October 12, 2017, he accused Plaintiff of having
grabbed his arm, as he earlier threatened to do. (Doc. 6, p. 9). Belford’s threats deterred
Plaintiff from accurately reporting the full details of the incident, hindering his ability to use the
grievance process. Id.
Defendants took the adverse actions against Plaintiff “in direct response to Plaintiff’s
protected conduct.” (Doc. 6, p. 9). He raises constitutional claims as well as statutory claims of
assault and battery pursuant to 720 ILCS 5/12-1 and 5/12-3. He seeks compensatory, punitive,
and nominal damages, as well as unspecified injunctive relief. (Doc. 6, p. 10).

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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 excessive force claim against Belford, for spraying
Plaintiff with mace, and forcing Plaintiff’s cuffed arms into a painful position;
Count 2: First Amendment retaliation claim against Belford for physically
injuring Plaintiff because Plaintiff attempted to access the courts, and for falsely
claiming that Plaintiff grabbed his arm because Plaintiff filed a grievance over
Belford’s conduct;
Count 3: Eighth Amendment deliberate indifference claim against Belford and
Ackers for placing Plaintiff in a holding cell where he was unable to clean the
mace from his body, and for failing to obtain medical care for Plaintiff’s injuries;
Count 4: Eighth Amendment claim against the Jane Doe Nurse for failing to
provide Plaintiff with medical care for the after-effects of the mace, including
trouble breathing, irritated eyes, sinuses, and skin, and for his injured wrists;
Count 5: State law claims for assault and battery against Belford, for spraying
Plaintiff with mace and injuring Plaintiff’s arms and wrists.
Count 6: Claim against Belford for interfering with Plaintiff’s right to access the
grievance procedure by threatening to harm Plaintiff and falsely accuse Plaintiff
of grabbing Belford’s arm.
Count 6 will be dismissed with prejudice pursuant to § 1915A for failure to state a claim
upon which relief may be granted. The remaining claims shall receive further consideration in
full or in part.
Count 1 – Excessive Force
The intentional use of excessive force by prison guards against an inmate without
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penological justification constitutes cruel and unusual punishment in violation of the Eighth
Amendment and is actionable under § 1983. See Wilkins v. Gaddy, 559 U.S. 34 (2010); DeWalt
v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). An inmate must show that an assault occurred, and
that “it was carried out ‘maliciously and sadistically’ rather than as part of ‘a good-faith effort to
maintain or restore discipline.’” Wilkins, 559 U.S. at 40 (citing Hudson v. McMillian, 503 U.S. 1,
6 (1992)). An inmate seeking damages for the use of excessive force need not establish serious
bodily injury to make a claim, but not “every malevolent touch by a prison guard gives rise to a
federal cause of action.” Wilkins, 559 U.S. at 37-38 (the question is whether force was de
minimis, not whether the injury suffered was de minimis); see also Outlaw v. Newkirk, 259 F.3d
833, 837-38 (7th Cir. 2001).
Here, Plaintiff admits that he disobeyed the initial order to cuff up. His explanation that
Belford’s order was “impossible and confusing” is not a reasonable excuse for his failure to
comply, especially in light of the fact that Plaintiff was able to obey the order after being
maced. 2 That said, the allegations suggest that the force applied by Belford (the initial use of
mace) may not have been part of a good-faith effort to get Plaintiff to comply with the order.
Taking Plaintiff’s allegations as true, as the Court must do at this stage, Belford’s second
spraying of mace after Plaintiff was already cuffed and facing the wall appears to have been
gratuitous and unnecessary to maintain discipline. Plaintiff may therefore proceed with his
excessive force claim against Belford based on the use of mace.
Similarly, Belford’s action of forcing Plaintiff’s cuffed arms into a stress position above
his head, and keeping him in that position while moving him to another cell house, may have
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Plaintiff’s allegation that Belford failed to comply with IDOC regulations regarding the use of mace on
an inmate is not determinative of whether or not Belford violated Plaintiff’s constitutional rights. A
federal court does not enforce state law or regulations. Archie v. City of Racine, 847 F.2d 1211, 1217 (7th
Cir. 1988) (en banc), cert. denied, 489 U.S. 1065 (1989); Pasiewicz v. Lake Cnty. Forest Preserve Dist.,
270 F.3d 520, 526 (7th Cir. 2001).

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amounted to excessive force under the circumstances. Plaintiff alleges that Belford’s conduct
inflicted pain and swelling on his wrists. This incident will also be considered as part of
Plaintiff’s claim against Belford for excessive force.
Plaintiff’s claim against Belford in Count 1 for excessive force survives scrutiny under
§ 1915A, and shall proceed.
Count 2 – Retaliation
Prison officials may not retaliate against inmates for filing grievances, lawsuits, or
otherwise complaining about their conditions of confinement. See, e.g., Gomez v. Randle, 680
F.3d 859, 866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v.
Carter, 224 F.3d 607 (7th Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v.
Lane, 857 F.2d 1139 (7th Cir. 1988). The issue in a retaliation claim is whether the plaintiff
experienced an adverse action that would deter a person of “ordinary firmness” from engaging in
First Amendment activity in the future, and if the protected First Amendment activity was “at
least a motivating factor” in the defendants’ decision to take the retaliatory action. See McKinley
v. Schoenbeck, __ F. App’x __, No. 17-1709, 2018 WL 1830942 at *3 (7th Cir. Apr. 17, 2018)
(quoting Surita v. Hyde, 665 F.3d 860, 878-79 (7th Cir. 2011)); Bridges v. Gilbert, 557 F.3d 541,
551 (7th Cir. 2009). “A complaint states a claim for retaliation when it sets forth ‘a chronology
of events from which retaliation may plausibly be inferred.’” Zimmerman v. Tribble, 226 F.3d
568, 573 (7th Cir. 2000) (citation omitted).
Plaintiff raises two potential retaliation claims against Belford. First, he alleges that
Belford forced his cuffed arms above his head when Plaintiff was “engaged in the protected
conduct of meaningfully accessing the court.” (Doc. 6, p. 7). This allegation, however, does not
indicate what Plaintiff was doing immediately after having been sprayed with mace, that

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amounted to “accessing the court.” Nor does Plaintiff explain how his alleged protected activity
triggered Belford’s adverse action of using physical force on him.
A Complaint must provide sufficient factual content to state a plausible claim, and
Plaintiff’s conclusory assertion falls short of this requirement. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 570 (2007). This portion of
the retaliation claim in Count 2 will therefore be dismissed without prejudice.
The second part of Count 2 may proceed, however. Specifically, Plaintiff alleges that
Belford threatened to accuse him of grabbing his arm through the chuckhole if Plaintiff filed a
grievance over Belford spraying him with mace. Plaintiff filed the grievance, although he claims
he omitted some information out of fear of retaliation. According to Plaintiff, in Belford’s
response to the grievance, he made good on his threat to level the false accusation against
Plaintiff.
The Complaint does not reveal whether Plaintiff actually suffered any adverse
consequences as a result of Belford’s alleged false accusation. However, the accusation that
Plaintiff grabbed Belford’s arm could form the basis for a disciplinary action against Plaintiff.
At this stage, this sequence of events supports a plausible retaliation claim. Therefore, aspect of
the claim against Belford in Count 2 shall receive further consideration.
Count 3 – Deliberate Indifference – Cell Conditions and Need for Medical Care
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)). Prison conditions that deprive inmates of basic human needs – food,
medical care, sanitation, or physical safety – may violate the Eighth Amendment. Rhodes, 452

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U.S. at 346; see also James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992).
In a case involving conditions of confinement in a prison, two elements are required to
establish a constitutional violation. 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 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.
Plaintiff claims that he was held in a cell without any sink, running water, soap, or towels
for approximately an hour. Ordinarily, a short-term deprivation of access to facilities or sanitary
supplies would not rise to the level of a constitutional violation. See Harris v. Fleming, 839 F.2d
1232, 1235 (7th Cir. 1988); Caldwell v. Miller, 790 F.2d 589, 600-01 (7th Cir. 1986). However,
Plaintiff had allegedly just been sprayed with a significant quantity of mace, and was in physical
distress. Under these circumstances, placing him in a cell that lacked any means for him to clean
the chemical residue from his face and body could constitute cruel and unusual punishment.
Belford was aware of Plaintiff’s condition and observed the cell and its lack of facilities when he
placed Plaintiff there. Accordingly, the deliberate indifference claim against Belford in Count 3
for housing Plaintiff in a cell with no means to clean himself of mace may proceed for further
consideration.
Plaintiff may also have a viable Eighth Amendment claim against Belford for deliberate
indifference to his need for medical care to mitigate the effects of the mace as well as the injury
to his wrists. The Seventh Circuit has held that a guard who uses excessive force on an inmate
has “a duty of prompt attention to any medical need to which the beating might give rise[.]”

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Cooper v. Casey, 97 F.3d 914, 917 (7th Cir. 1996). Plaintiff alleges that he displayed obvious
symptoms of distress from the mace exposure and trauma to his wrists, which indicated that he
needed a medical assessment. It is not clear whether Belford summoned the Jane Doe Nurse to
check on Plaintiff. If he did not do so, he may have failed in his duty to seek medical attention
for Plaintiff’s condition. Such an omission would also support the deliberate indifference claim
in Count 3.
Plaintiff’s deliberate indifference claim against Ackers, however, will be dismissed
without prejudice. Plaintiff alleges only that Ackers approved Belford’s action of placing him in
segregation based on Belford’s disciplinary report. Nothing in the Complaint suggests that
Ackers was aware of the condition of the holding cell, or the risk of harm to Plaintiff from being
placed there with no way to clean off the mace residue. Without such knowledge, Ackers cannot
be held liable for deliberate indifference to Plaintiff’s health or safety. Furthermore, Plaintiff’s
allegation that the disciplinary report somehow failed to comply with IDOC policy has no
bearing on whether Ackers violated Plaintiff’s constitutional rights. Therefore, Count 3 shall
proceed against Belford only.
Count 4 – Deliberate Indifference to Medical Needs – Nurse
Like the Eighth Amendment claim asserted in Count 3, a claim for deliberate indifference
to serious medical needs has two components. A plaintiff must show that he (1) suffered from an
objectively serious medical condition; and (2) that the defendant was deliberately indifferent to a
risk of serious harm from that condition. A condition that could “result in further significant
injury or the unnecessary and wanton infliction of pain” if not treated, or “an injury that a
reasonable doctor or patient would find important and worthy of comment or treatment”
indicates a serious medical need. Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).

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“Deliberate indifference is proven by demonstrating that a prison official knows of a
substantial risk of harm to an inmate and either acts or fails to act in disregard of that risk.
Delaying treatment may constitute deliberate indifference if such delay exacerbated the injury or
unnecessarily prolonged an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012)
(internal citations and quotations omitted). See also Farmer v. Brennan, 511 U.S. 825, 842
(1994); Perez v. Fenoglio, 792 F.3d 768, 777-78 (7th Cir. 2015). The Eighth Amendment does
not entitle inmates to “demand specific care” or “the best care possible,” but only requires
“reasonable measures to meet a substantial risk of serious harm.” Forbes v. Edgar, 112 F.3d
262, 267 (7th Cir. 1997). Further, a defendant’s inadvertent error, negligence or even ordinary
malpractice is insufficient to rise to the level of an Eighth Amendment constitutional violation.
See Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008).
Plaintiff claims the Jane Doe Nurse observed his condition, including the lingering smell
of mace. He was allegedly gasping for breath, tears were flowing, his nose was red and swollen
and discharging snot, his wrists were bruised and swollen, and he was moaning.

These

symptoms satisfy the objective component of this claim.
Plaintiff alleges that the Jane Doe Nurse only gave him 2 gauze pads. She did not
provide any other treatment, nor did she refer him to a doctor. Given Plaintiff’s obvious
symptoms, the Nurse arguably did not provide a reasonable response in order to mitigate
Plaintiff’s symptoms or alleviate his pain. Accordingly, the deliberate indifference claim against
the Jane Doe Nurse in Count 4 survives § 1915A review. However, Plaintiff will be required to
identify the Jane Doe Nurse by name before this claim may proceed.
Count 5 – State Law Claims for Assault and Battery
Plaintiff references two Illinois criminal statutes to raise claims that he was assaulted and

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battered by Belford, 720 ILCS 5/12-1 and 5/12-3. (Doc. 6, p. 9). Plaintiff cannot bring criminal
charges in the context of a civil rights suit. However, under 28 U.S.C. § 1367(a), a federal court
has supplemental jurisdiction over state law claims which are “derive[d] 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)).
To the extent that Plaintiff wishes to assert tort claims for assault and/or battery against
Belford, these state law claims are based on the same facts that support the federal excessive
force claim. Plaintiff may therefore proceed with these state law claims in Count 5.
Dismissal of Count 6 – Interference with Grievance Procedure
Plaintiff appears to be asserting a distinct claim against Belford for deterring him from
“accurately complaining the full details of the incidents in question” when he filed his grievance
over Belford’s alleged excessive force. (Doc. 6, p. 9). According to Plaintiff, Belford threatened
to harm him and to make a false claim that Plaintiff grabbed his arm, if Plaintiff filed a grievance
against him over the macing incident.

Even if these allegations are true, Plaintiff cannot

maintain a constitutional claim based on interference with his right to file a grievance.
“[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). In fact, the
Constitution requires no grievance procedure at all.

Thus, there is no violation of the

Constitution if an official hinders an inmate from fully utilizing the prison grievance procedures
or fails to follow the grievance procedures. Maust v. Headley, 959 F.2d 644, 648 (7th Cir.
1992); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982). Accordingly, Count 6 will be

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dismissed with prejudice for failure to state a claim upon which relief may be granted.
Identification of Unknown Defendant
Plaintiff will be allowed to proceed with his claim in Count 4 against the Jane Doe Nurse.
However, this defendant must be identified with particularity before service of the Complaint can
be made on her. Where an inmate’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 inmate 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, Plaintiff may direct discovery requests aimed at identifying this unknown
Defendant to Belford. Guidelines for discovery will be set by the United States Magistrate
Judge. Once the name of the Jane Doe Nurse 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 Motion
Plaintiff’s motion for recruitment of counsel (Doc. 8) is referred to the United States
Magistrate Judge for further consideration.
Disposition
COUNT 6 is DISMISSED with prejudice for failure to state a claim upon which relief
may be granted.
Defendant ACKERS is DISMISSED from this action without prejudice.
The Clerk of Court shall prepare for Defendant BELFORD: (1) Form 5 (Notice of a
Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of

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Summons). The Clerk is DIRECTED to mail these forms, a copy of the Complaint, and this
Memorandum and Order to Defendant’s place of employment as identified by Plaintiff. If
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 Defendant, and the Court will require Defendant to pay the full costs of formal
service, to the extent authorized by the Federal Rules of Civil Procedure.
If the Defendant cannot be found at the 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, nor disclosed by the Clerk.
Service shall not be made on Defendant JANE DOE NURSE until such time as Plaintiff
has identified her 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.
Defendant is 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 Reona J. Daly for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 8), and a plan for
discovery aimed at identifying the unknown defendant with particularity.
Further, this entire matter shall be REFERRED to United States Magistrate Judge Daly
for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to

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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.
DATED: June 22, 2018

s/ STACI M. YANDLE
United States District Judge

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