Kitterman v. Kelly et al

Filing 30

ORDER DENYING 29 Plaintiff's Motion for Reconsideration consistent with the attached Memorandum and Order. Plaintiff has until December 14, 2020 to serve Defendants in this case. Should Plaintiff not serve Defendants within this timeframe, NOTICE IS HEREBY GIVEN that this case will be dismissed without prejudice for want of prosecution pursuant to Fed. R. Civ. P. 4(m). Signed by Magistrate Judge Mark A. Beatty on 11/20/2020. (spl)

Case 3:20-cv-00500-MAB Document 30 Filed 11/20/20 Page 1 of 3 Page ID #127

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHANE A. KITTERMAN,
Plaintiff,
vs.
BRENDAN KELLY, ET AL.,
Defendants.

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Case No. 3:20 -CV-00500 -MAB

MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
Presently before the Court is Plaintiff’s Motion for Reconsideration for Denial of
Service (Doc. 29). Plaintiff filed a motion for reconsideration after the Court denied his
request for service at the government’s expense (Doc. 28). In his motion, Plaintiff explains
that he has mailed two applications to proceed in forma pauperis (“IFP”), alerting the
Court to his current financial status. Plaintiff also explains that he has complied with all
Court Orders, but cannot afford to serve Defendants without his motions to proceed IFP
being granted. Additionally, Plaintiff states that he cannot control the St. Clair County
Sheriff to make them comply to provide the Court with a copy of his trust fund statement.
The Court has given Plaintiff ample opportunities to provide the Court with
information about his current trust fund balance and/or his efforts to obtain this
information. Plaintiff paid the filing fee for this case on or around June 23, 2020. Soon
after, he filed a motion for service at government expense (Doc. 12), which the Court
denied because Plaintiff paid the filing fee, is not proceeding IFP, and did not provide
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information about his current financial status. As a reminder, when a plaintiff has paid
the filing fee and is not proceeding IFP, it is not mandatory for the Court to order service
by the USMS at the expense of the Court. Instead, the decision is discretionary. See Koger
v. Bryan, 523 F.3d 789, 803 (7th Cir. 2008). Plaintiff again filed a motion to proceed IFP on
July 24, 2020 (Doc. 14), which the Court denied again (Doc. 17) because Plaintiff did not
provide the Court with supporting material about his financial status. In that Order, the
Court told Plaintiff explicitly that if he was unable to provide a copy of his trust fund
account statement, “he must explain…in detail the efforts he made to obtain these
documents” (Doc. 17). Plaintiff did not provide the Court with information about his
financial status or detail his efforts in Doc. 18 (a renewed motion for leave to proceed
IFP), so the Court denied his request, but sent a copy of that Order and the certification
form to the Trust Fund Officer at the St. Clair County Jail to help facilitate the process
(Doc. 20). Plaintiff was given a deadline of October 21, 2020 to provide the Court with
information about his financial status or detail his efforts to obtain this information.
Plaintiff did not provide the Court with either.
On October 30, 2020, the Court entered an Order denying Plaintiff’s motion for
service at government expense (Doc. 28) after Plaintiff had multiple opportunities over
the course of approximately four months to provide the Court with information about
his financial status or detail his efforts to obtain this information. Accordingly, Plaintiff’s
motion for reconsideration is DENIED. Plaintiff has until December 14, 2020 to serve
Defendants, as outlined in the Court’s prior Order (Doc. 28).

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IT IS SO ORDERED.
DATED: November 20, 2020

s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge

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