Celia v. Kane et al

Filing 9

ORDER re 4 Complaint filed by Robert Anthony Celia. The clerks office is directed to serve the complaint on the defendants and mail a copy of the complaint to the Iowa Attorney General without the prepayment of fees and costs. A copy of this order is to accompany the documents being served. The Iowa Attorney General is directed to notify the court immediately if he lacks the consent of the defendants to appear generally on their behalf and submit to the jurisdiction of the court. The defendant s are directed to file an answer or other dispositive motion by no later than January 13, 2014. Signed by Magistrate Judge Leonard T Strand on 12/10/13. (copy w/nef mailed to plaintiff; copy w/nef and complaint mailed to defendants and Iowa Attorney General) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

ROBERT ANTHONY CELIA,
Plaintiff,

No. C13-3018-MWB

vs.
MIKE KANE, RYAN MOORE,
ZDRAZIL,

ORDER

Defendants.
____________________________
The matter before the court is an order dated September 24, 2013 (Doc. No. 8).
Pursuant to such order, the court directed the plaintiff to submit an initial partial filing fee.
On October 8, 2013, the plaintiff complied with the court’s directive.
Read liberally, the plaintiff’s complaint appears to assert a failure to protect claim.
In light of the facts alleged by the plaintiff and the law, the court is doubtful that the
plaintiff states a claim upon which relief can be granted. This is so because it appears that
the plaintiff did not fully exhaust administrative remedies prior to commencing this action,
see 42 U.S.C. § 1997e(a), and the facts suggest that the plaintiff told the defendants that
he was generally having issues with others and had not told them that he had been
threatened by a particular individual, that he elected to return to general population and
that a significant amount of time passed between when he complained to the defendants and
when he was assaulted, see Prater v. Dahm, 89 F.3d 538, 541-42 (8th Cir. 1996) (finding
that a prisoner failed to show that a prison official “actually knew of the risk” to the
prisoner when the prisoner told the official that he received threats from his roommate
because, in part, after reporting the threats, the prisoner and his roommate told the official
that there would be no trouble and the two “were incarcerated together for a substantial

period of time without incident”). Nevertheless, the court is unable to determine as a
matter of law whether the plaintiff’s complaint is frivolous or fails to state a claim within
the meaning of 28 U.S.C. § 1915 or 28 U.S.C. § 1915A. Consequently, the court is of
the opinion that the matter is best addressed after receipt of an answer and/or any
dispositive motion deemed appropriate. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.
Ct. 1827, 1831, 104 L. Ed. 2d 338 (1989); Money v. Moore, 877 F.2d 9, 10 (8th Cir.
1989). The clerk’s office shall serve the complaint on the defendants and mail a copy of
the complaint to the Iowa Attorney General without the prepayment of fees and costs. A
copy of this order is to accompany the documents being served. The Iowa Attorney
General shall notify the court immediately if he lacks the consent of the defendants to
appear generally on their behalf and submit to the jurisdiction of the court. The defendants
shall file an answer or other dispositive motion by no later than January 13, 2014.
IT IS THEREFORE ORDERED:
The clerk’s office is directed to serve the complaint on the defendants and mail a
copy of the complaint to the Iowa Attorney General without the prepayment of fees
and costs. A copy of this order is to accompany the documents being served. The
Iowa Attorney General is directed to notify the court immediately if he lacks the
consent of the defendants to appear generally on their behalf and submit to the
jurisdiction of the court. The defendants are directed to file an answer or other
dispositive motion by no later than January 13, 2014.
IT IS SO ORDERED.
DATED this 10th day of December, 2013.

________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
2

NOTICE OF LAWSUIT
and REQUEST FOR
WAIVER OF SERVICE OF SUMMONS
TO THE NAMED DEFENDANT(S) IN THE FOLLOWING CAPTIONED ACTION:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

ROBERT ANTHONY CELIA,
Plaintiff,

No. C13-3018-MWB

vs.
MIKE KANE, RYAN MOORE, ZDRAZIL,
Defendants.
____________________________

A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A copy of
the complaint and a copy of the corresponding order from this court are attached. This complaint has been filed in
the United States District Court for the Northern District of Iowa.
Pursuant to Rule 4 of the Federal Rules of Civil Procedure, you have an obligation to cooperate in saving
unnecessary costs of service of summons and complaint. Please sign the enclosed document where appropriate
acknowledging receipt of the complaint and notice of this pending lawsuit and waiving formal service of summons.
After signing the enclosed document, please return it to the United States Clerk’s Office in the envelope provided
within thirty (30) days of this date: 12/10/13
.
I affirm that this notice and request for waiver of service of summons is being sent to you on behalf of the
12/10/13
plaintiff, this
, 2013.

/s/ djs, Deputy Clerk
Signature (Clerk’s Office Official)
Northern District of Iowa

ACKNOWLEDGMENT OF RECEIPT OF
NOTICE OF LAWSUIT,
and WAIVER OF SERVICE OF SUMMONS

12/10/13
(**Return this document within thirty days after ______________________________, to the United States Clerk’s
Office in the envelope provided.)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION

ROBERT ANTHONY CELIA,
Plaintiff,

No. C13-3018-MWB

vs.
MIKE KANE, RYAN MOORE, ZDRAZIL,
Defendants.
____________________________
I acknowledge receipt of the complaint and notice of the lawsuit in which I (or the entity on whose behalf I
am addressed) have been named a defendant. I have received and/or read the complaint accompanying this document.
I agree to save the cost of service of a summons and an additional copy of the complaint by not requiring that
I (or the entity on whose behalf I am acting) be served with judicial process in the manner provided by Rule 4 of the
Federal Rules of Civil Procedure. I hereby waive service of summons.
I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or to the
jurisdiction or venue of the court except for objections based on a defect in the service of summons. I understand that
a judgment may be entered against me (or the entity on whose behalf I am acting) if an answer or motion under Rule
12 of the Federal Rules of Civil Procedure is not served within 60 days after
, (the date
Notice, Waiver and corresponding documents were sent).
Date

Date

Signature
Printed name
As
(Title)
Signature
Printed name
As
(Title)

of
(Entity)
of
(Entity)

Address Form
Case Number: C13-3018-MWB
To:
RE:

Date: December 10, 2013

Clerk of Court
Service on Named Defendants
Below, please find the known (or likely) addresses for the following
persons/entities who have been named as defendants to this action:

Defendant:

All Defendants
Fort Dodge Correctional Facility