Karmue v. Remington et al

Filing 45

ORDER directing clerk's office to issue summons to serve Amended Complaint on defendants John Does 1 through 4 along with documents #11,17,20,21-24,41 and 44; the United States Attorney within sixty days shall file a notice stating the names of the John Does or to file a notice why the John Does cannot be named and the efforts made to discover their identities; Plaintiff must amend his complaint within thirty days of the date of this Order as to Claims 4, 6 and 7 as set forth in 44 Report and Recommendation So Ordered by Magistrate Judge Andrea K Johnstone on 7/24/2017. (Barletta, Barbara)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

Kormahyah Karmue
v.

Civil No. 17-cv-107-LM-AKJ

David Remington, Chief Deputy
United States Marshal, et al.1

O R D E R
Before the court is plaintiff Kormahyah Karmue’s Amended
Complaint (Doc. No. 11), which is the operative complaint in
this matter, asserting claims against employees of both the
United States Marshals Service for the District of Rhode Island
(“USMS-RI”) and the Donald W. Wyatt Detention Center (“WDC”),
pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

The

Amended Complaint (Doc. No. 11) is before the court for
preliminary review, pursuant to 28 U.S.C. § 1915A(a).
In a Report and Recommendation (“R&R”) issued
simultaneously with this Order, the court identified seven

1Karmue

identifies the following defendants in the caption
and/or narrative portion of the Amended Complaint (Doc. No. 11):
United States Marshals Service for the District of Rhode Island
(“USMS-RI”) Chief Deputy David Remington; USMS Deputies John Doe
#1, #2, #3, and #4; and the Warden of the Donald W. Wyatt
Detention Center. Additionally, Karmue asserts claims against
unnamed “agents” of the defendants.

claims, some with subparts, asserted by Karmue in his amended
complaint.

As fully explained in the R&R, and as set forth

herein, the court now directs that certain claims be served at
this time, and provides Karmue with an opportunity to amend
other claims asserted in the amended complaint.

Discussion
I.

Claims to be Served
A.

Claims Against John Does #1 - #4

The claims identified in the R&R as Claims 1, 2, and 3, are
asserted against unnamed USMS-RI deputies identified as John
Does #1 - #4.

The clerk’s office is directed to prepare and

issue summonses for John Does #1 - #4, using the address of the
USMS-RI, and to make copies of the Amended Complaint (Doc. No.
11), the motions for temporary restraining orders (Doc. Nos. 1720), the motions for preliminary injunctions (Doc. Nos. 21-24),
the June 27, 2017 R&R (Doc. No. 41), the R&R issued this date,
and this Order.

The clerk’s office is directed to send a copy

of those documents, including the summonses, to the Attorney
General of the United States, by certified mail.

The clerk’s

office is further directed to provide two sets of copies of
those documents and the summonses to the United States Marshals
Service for delivery to the civil process clerk at the Office of
2

United States Attorney for the District of Rhode Island,
pursuant to procedures authorized by Rules 4(c)(3), 4(e) and
4(i)(3) of the Federal Rules of Civil Procedure.
Within sixty days of the date of this Order, the United
States Attorney for the District of Rhode Island is directed to
file a notice stating the names of the individuals identified in
this Order as John Does #1 - #4, as well as an address at which
those defendants can be served.2

If the names of the John Doe

defendants cannot be determined within sixty days, the United
States Attorney for the District of Rhode Island is directed to
file a notice to that effect with the court, setting forth the
efforts made to discover the identity of those defendants.
Upon receipt of the identity and address of the John Doe
defendants, or other response to this Order, the court may
direct service on those defendants as necessary.

No answer to

the amended complaint need be filed on behalf of any of the
defendants identified as John Does #1 - #4 prior to this court’s
issuance of an Order directing service upon those defendants
individually.

2If

any John Doe defendant to this action can be identified,
but cannot be served at the USMS-RI, the United States Attorney
must provide the last known address of that individual to the
court. If appropriate, the United States may file a motion to
seal the unredacted notice, along with a redacted copy of the
notice to place in the public docket. See LR Gen 102.
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B.

Americans with Disabilities Act Claim

The clerk’s office is directed to prepare a summons form
for the WDC Warden, using the WDC address.

The clerk’s office

shall forward to the USMS-RI: the Amended Complaint (Doc. No.
11), the motions for temporary restraining orders (Doc. Nos. 1720), the motions for preliminary injunctions (Doc. Nos. 21-24),
the June 27, 2017 Report and Recommendation (Doc. No. 41), and
this Order, for service on the WDC Warden, using the WDC
address.

Upon receipt of the necessary documentation, the USMS-

RI is directed serve process upon the WDC Warden pursuant to 28
U.S.C. § 1915(d) and Rules 4(c)(3), 4(e), and 4(j)(2) of the
Federal Rules of Civil Procedure.
Defendant is instructed to answer or otherwise plead within
twenty-one days of service.

See Fed. R. Civ. P. 12(a)(1)(A).

Plaintiff is instructed that all future pleadings, written
motions, notices, or similar papers shall be served directly on
the WDC Warden by delivering or mailing the materials to that
defendant or the defendant’s attorney(s), pursuant to Fed. R.
Civ. P. 5(b).
II.

Claims to be Amended
A.

Inadequate Medical Care Claims

As fully discussed in the R&R, in claims identified therein
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as Claims 4 and 7, the plaintiff has alleged facts suggesting
that the WDC Warden, and unnamed WDC medical staff members
failed to provide him with adequate medical care at WDC, and
that unnamed individuals failed to provide him with adequate
medical care at his current place of incarceration, the Federal
Medical Center, Devens, in Massachusetts (“FMC-Devens”).

Before

this court can direct service of federal claims against any
individual WDC or FMC-Devens staff member, however, and before
this court will conclude whether this court is an appropriate
venue for claims against FMC-Devens personnel, plaintiff must
name, or otherwise specifically identify, the individual WDC and
FMC-Devens employees who he alleges are responsible for denying
him adequate care.
Further, Karmue must state facts to demonstrate that each
individual defendant, against whom Karmue intends to assert
inadequate medical care claims, knew or should have known that
Karmue had a serious medical problem, and must state, with
specificity, what each individual defendant did or failed to do
that resulted in a deprivation of adequate care for Karmue’s
serious medical needs.

Accordingly, Karmue is directed to amend

his complaint, within thirty days of the date of this Order, to
name specific defendants to his inadequate medical care claims,
and to state specific facts demonstrating how each defendant
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violated his right to adequate medical care.

Pending Karmue’s

response to this Order, the court takes under advisement the
question of whether this court is the proper venue for a claim
against the FMC-Devens defendants.
B.

Retaliation Claims

In the claim identified as Claim 6 in the R&R, Karmue
alleges that unnamed WDC medical department and WDC SHU staff
members retaliated against him, in response to his repeated
requests for medical care, by transferring him from the WDC
medical clinic to SHU, and then by threatening to subject him to
further worsened conditions of confinement, should he continue
to complain about his medical care.

Karmue has failed, however,

to name specific defendants to those claims.

Within thirty days

of the date of this Order, Karmue must amend his complaint to
name one or more defendants to his retaliation claim, and to
state, with specificity, what each defendant did or failed to do
that renders him or her liable for retaliating against Karmue.

Conclusion
For the foregoing reasons, the court directs as follows:
1.

Claims 1-3, as numbered and set forth in the R&R

issued this date, shall be served on John Does #1, #2, #3, and
#4, in accordance with this Order.
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2.

The United States Attorney is directed to determine,

and to file, within sixty days, the names and service addresses
of the defendants identified herein as John Does #1 - #4, or
notice that no such information can be provided, in accordance
with this Order.

The individual defendants identified as John

Does #1 - #4 need not answer the amended complaint, except as
set forth in this Order, until directed to do so by the court.
3.

Claim 5, as numbered and set forth in the R&R issued

this date, shall be served on the WDC Warden, and the WDC Warden
shall file an answer or other response, in accordance with this
Order.
4.

Karmue must amend his complaint in regard to Claims 4,

6, and 7, as numbered and set forth in the R&R issued this date,
as explained in that R&R and this Order, within thirty days of
the date of this Order.

Pending Karmue’s response to this

Order, the court takes under advisement the question of whether
this court is the proper venue for a claim against the FMCDevens defendants.
SO ORDERED.
__________________________
Andrea K. Johnstone
United States Magistrate Judge
July 21, 2017
cc:

Kormahyah Karmue, pro se
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