Elmore v. Morton et al
| Franklin Elmore |
| James Morton, Candy Anderson, Robert Smith, Marie Durant, Katrina Parker, Sandra Simpson, Aimee Wilczynski, Sharlene Caraway and James Haage |
| 3:2012cv03004 |
| January 3, 2012 |
| U.S. District Court for the Central District of Illinois |
| Springfield Office |
| Schuyler |
| Byron G. Cudmore |
| Sue E. Myerscough |
| Prison Condition |
| 42 U.S.C. ยง 1983 |
| None |
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Filing
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Opinion (See Written Opinion): 1) The hearing scheduled for February 13, 2012, is cancelled. The clerk is directed to vacate the writ and to notify Plaintiff's prison of the cancellation. 2) Pursuant to its review of the Complaint, the Cou rt finds that Plaintiff states federal constitutional claims against Defendants Morton and Anderson for failure to protect and for an equal protection violation, based on their alleged failure to protect Plaintiff from resident Smith's assault. Plaintiff also makes out a state law assault claim against Defendant Smith. 3) Plaintiff's claim regarding his disciplinary hearing and punishment and his claim about the failure to investigate and properly respond to his grievance are dismiss ed, with prejudice, for failure to state a claim. 4) Plaintiff's claim about the lack of a shower and hygiene necessities while in segregation is dismissed for failure to state a claim without prejudice to refiling with information about the le ngth of these deprivations and whether Plaintiff was allowed toilet paper, soap, toothpaste, and a toothbrush. 5) Defendants Durant, Parker, Simpson, Wilczynski, Caraway, and Haage are dismissed for failure to state a claim against them because they are implicated only in the claims being dismissed. 6) Plaintiff's petition to proceed in forma pauperis (d/e 2) is granted. Any additional claims shall not be included in the case, except at the Court's discretion on motion by a party f or good cause shown or pursuant to Federal Rule of Civil Procedure 15. 7) The Clerk is directed to attempt service of the Complaint and this order on each Defendant pursuant to this District's internal procedures for Rushville cases. 8) If a Defendant fails to sign and return a Waiver of Service to the Clerk within 30 days after the Waiver is sent, the Court will take appropriate steps to effect formal service on that Defendant and will require that Defendant to pay the full costs of for mal service pursuant to Federal Rule of Civil Procedure 4(d)(2). 9) With respect to a Defendant who no longer works at the address provided by Plaintiff, the entity for whom that Defendant worked while at that address shall provide to the Clerk that Defendant's current work address, or, if not known, that Defendant's forwarding address. This information shall be used only for effecting service. Documentation of forwarding addresses shall be retained only by the Clerk and shall not be maintained in the public docket nor disclosed by the Clerk. 10) Defendants shall file an answer within the time prescribed by Local Rule. A motion to dismiss is not an answer. The answer should include all defenses appropriate under the Federal Ru les. The answer and subsequent pleadings shall be to the issues and claims stated in this Opinion. 11) Plaintiff shall serve upon any Defendant who has been served but who is not represented by counsel a copy of every filing submitted by Plaintiff for consideration by the Court, and shall also file a certificate of service stating the date on which said copy was mailed. Any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk or that fails to include a required certificate of service will be stricken by the Court. 12) Once counsel has appeared for a Defendant, Plaintiff need not send copies of his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will file Plaintif f's document electronically and send a notice of electronic filing to defense counsel. The notice of electronic filing shall constitute service on Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not available, Pla intiff will be notified and instructed accordingly. 13) This cause is set for further scheduling procedures under Fed. R. Civ. P. 16 on April 30, 2012 (or as soon as the Court can reach the case) at 11:00 a.m. before U. S. District Judge Sue E. Myers cough, by video conference. The Clerk is directed to give Plaintiff's place of confinement notice of the date and time of the conference, and to issue the appropriate process to secure the Plaintiff's presence at the conference. 14) Couns el for Defendants is hereby granted leave to depose Plaintiff at his place of confinement. Counsel for Defendants shall arrange the time for the depositions.15) Plaintiff shall immediately notify the court of any change in his mailing address and te lephone number. Plaintiff's failure to notify the Court of a change in mailing address or phone number will result in dismissal of this lawsuit, with prejudice. 16) The Clerk is directed to notify the parties of their option to consent to dispo sition of this case before a United States Magistrate Judge by providing Plaintiff with a magistrate consent form. Upon receipt of a signed consent from Plaintiff, the Clerk shall forward the consent to Defendants for consideration. Entered by Judge Sue E. Myerscough on 02/08/2012. (VM, ilcd)
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