Gakuba v. Doe 1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

PETER GAKUBA, )

)

Plaintiff, ) 22-1103-SPM

)

vs. ) Case No. 22-cv-668-NJR

)

)

CATHERINE WRIGHT, JOHN )

BARWICK, MATTHEW SWELLS, )

TERRY GRISSOM, JOHN DOE #1, )

JOHN BROOKHART, CAMILE )

LINDSAY, and ROBERT FANNING, )

)

Defendants. )

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Plaintiff Peter Gakuba, a former inmate of the Illinois Department of Corrections

(“IDOC”), brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C.

§ 1983. He filed a Complaint (Doc. 3) pursuant to Section 1983 as well as a motion to proceed

in forma pauperis (“IFP”) (Doc. 2). Because Gakuba was no longer incarcerated, his claims were

not subject to review under 28 U.S.C. § 1915A but were still subject to review under 28 U.S.C.

§ 1915(a)(1) because he sought IFP status. The Court denied his request for IFP status and

dismissed his Complaint (Doc. 3) for failure to state a claim. He was granted leave to amend

his Complaint and, on April 19, 2022, filed his First Amended Complaint (Doc. 14). He also

filed a motion for temporary restraining order and/or preliminary injunction (Doc. 15).

Under 28 U.S.C. § 1915(a)(1), a federal district court may allow a civil case to proceed

without prepayment of fees, if the movant “submits an affidavit that includes a statement of

all assets [he] possesses [showing] that the person is unable to pay such fees or give security

therefor.” Gakuba has done so here. But the Court’s inquiry does not end there, because

28 U.S.C. § 1915(e)(2) requires careful threshold scrutiny of the complaint filed by an IFP

plaintiff (those filed by prisoners and non-prisoners alike).

A court can deny a qualified plaintiff leave to file IFP or can dismiss a case if the action

is clearly frivolous or malicious, fails to state a claim, or is a claim for money damages against

an immune defendant. 28 U.S.C. § 1915(e)(2)(B). The test for determining if an action is

frivolous or without merit is whether the plaintiff can make a rational argument on the law

or facts in support of the claim. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Corgain v. Miller,

708 F.2d 1241, 1247 (7th Cir. 1983). An action fails to state a claim 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). When assessing a motion to proceed IFP, a district court should inquire

into the merits of the plaintiff’s claims, and if the court finds that the case lacks merit under

the criteria listed in Section 1915(e)(2)(B), it should deny leave to proceed IFP. Lucien v.

Roegner, 682 F.2d 625, 626 (7th Cir. 1982).

THE AMENDED COMPLAINT

In his Amended Complaint, Gakuba makes the following allegations: On April 27,

2021, Gakuba paroled out of IDOC custody (Doc. 14, p. 8). Prior to his parole, he prepared

18 banker boxes full of legal documents for shipment. These boxes contained legal documents

essential to his pending civil conditions of confinement claims and collateral attacks to his

conviction. The boxes also included correspondence with his lawyers and settlement

documents (Id. at p. 8). Gakuba alleges that the boxes contain approximately 7,000 pages of

court transcripts and 7,000 pages of court records (Id. at p. 10). Later in the Amended

Complaint he alleges that the documents contain 6,000 pages of transcripts and 8,000 pages

of court records (Id. at p. 30).

One of the documents in his box includes a transfer denial slip which Gakuba believes

it relevant to another of his cases Gakuba v. Rain, Case No. 19-cv-437 (S.D. Ill.). Although

Gakuba acknowledges that the case is on appeal (Defendants were granted summary

judgment on exhaustion grounds on June 18, 2020 (Doc. 82)), Gakuba believes the document

will be relevant to his claims in that case if the judgment is overturned on appeal and returns

to this Court for merits discovery (Doc. 14, pp. 23-24). He alleges that other documents are

necessary to support a “contemplated Rule 60(b)” motion, his present lawsuits, and a case

that is currently stayed (Id. at p. 26). See Gakuba v. Swells, Case No. 20-cv-277-SMY and Gakuba,

Case No. 12-cv-7296.

In September 2019, Gakuba transferred to Vienna Correctional Center. At that time,

he packed 16 banker boxes of legal materials in copy paper boxes (Id. at pp. 18-19). He

requested packing tape from John Doe #1 property manager who refused to give him tape

(Id. at p. 19). Gakuba maintains that when he previously transferred, his documents were

transferred in polymer locked boxes with zip ties, as opposed to cardboard copy paper boxes

(Id. at p. 23). He alleges that John Doe #1 knew or should have known that transporting such

documents, unsealed, would result in their loss or destruction (Id.).

When he arrived at Vienna, Catherine Wright summoned him to retrieve his personal

property. She informed him that his banker boxes of legal materials were left by the side of

the road in a trash heap (Id. at p. 19). Gakuba alleges that ¼ of the documents were damaged

with boot prints and another ¼ were missing. Wright indicated she had never seen anything

like this before and called Barwick, who Gakuba labels as warden #2, who took pictures with

his iPhone (Id. at p. 20). Barwick discussed the matter with Matthew Swells, who Gakuba

labels warden #1, and Swells directed Barwick to send the pictures to the wardens at

Robinson (Id.). Wright informed Gakuba that Jake Brookhart, warden #2 at Robinson, was

contacted about the destruction. Gakuba filed emergency grievances on the matter which

Swells deemed not an emergency (Id.). He maintains that he filed three to 10 grievances on

the destroyed documents. He also spoke with Barwick and Wells on a number of occasions

about the status of his grievances, but they were evasive and he never received responses (Id.

at pp. 20-21). When Swells retired and Grissom took over as warden, Gakuba continued to

inquire of Grissom about the status of his grievances but he, too, was evasive (Id. at p. 21).

Gakuba alleges that between September 2019 and April 27, 2021, he continued to

inquire about his grievances with Swells, Barwick, and Grissom but they were evasive and

refused to show Gakuba the photos of his destroyed property (Id. at pp. 21-22). Gakuba

alleges that he was transferred to Vienna from Robinson in retaliation for suing the Robinson

warden and the destruction of his legal documents was an additional act of retaliation (Id. at

p. 24). He believes he was transferred in order to obtain access to his legal documents and

destroy them (Id. at pp. 24-25). He believes this to be retaliation because he previously

requested a transfer which was denied (Id.).

Upon his release on April 27, 2021, Gakuba left without his legal materials. He alleges

that Wright, Barwick, Grissom, and Swells refused to discuss the matter with him, denied his

emergency grievances related to the documents, and then offered to mail the documents if

Gakuba paid the postage, which amounted to $1,200.00 (Id. at p. 27). Gakuba alleges that his

personal lawyer offered to have his UPS account billed for the shipment, but his request was

refused. Specifically, Gakuba’s counsel called Camile Lindsey, former IDOC general counsel,

who stated that she would have to speak with her successor, Robert Fanning (Id.). She stated

that something could be worked out between Gakuba and IDOC, but Gakuba alleges that

IDOC was required to mail all of his legal materials in accordance with 20 Ill. Admin. Code

§ 525.130(a) (Id.). Lindsay also offered to have the documents shipped to Gakuba’s brother in

Chicago, Illinois (Id. at p. 28). Gakuba found the request unreasonable (Id.). Lindsay offered

to transfer the documents to another Illinois prison for pick-up by Gakuba, which he also

found unreasonable (Id.). Lindsay then handed the issue off to Robert Fanning. Gakuba spoke

to another official in the general counsel’s office and was told that they were working on the

issue (Id.). Lindsay later emailed the attorney assisting Gakuba “washing her hands” of the

issue (Id. at p. 30).

DISCUSSION

Based on the allegations in the Amended Complaint, Gakuba sets forth the following

Counts:

Count 1: First and/or Fourteenth Amendment access to courts claim

against Wright, Barwick, Swells, Grissom, John Doe,

Brookhart, Lindsay, and Fanning for destroying his legal

documents in 2019 and denying him access to his legal boxes

upon his release in April 2021.

Count 2: Title VI of the Civil Rights Act violation against Wright,

Barwick, Swells, Grissom, John Doe, Brookhart, Lindsay, and

Fanning for destroying his legal documents in 2019 and

denying him access to his legal boxes upon his release in April

2021.

Count 3: Fourteenth Amendment abuse of process claim against

Wright, Barwick, Swells, Grissom, John Doe, Brookhart,

Lindsay, and Fanning for destroying his legal documents in

2019 and denying him access to his legal boxes upon his

release in April 2021.

Count 4: First Amendment retaliation claim against Wright, Barwick,

Swells, Grissom, John Doe, Brookhart, Lindsay, and Fanning

for destroying his legal documents in 2019 and denying him

access to his legal boxes upon his release in April 2021.

Count 5: Illinois State Law Conspiracy claim against all Defendants.

Count 6: Illinois State Law Illegal Tort Conversion claim against all

Defendants.

Count 7: Illinois State Law Gross Negligence claim against all

Defendants.

Count 8: Fourteenth Amendment spoilation claim against all

Defendants for losing and/or destroying Barwick’s iPhone

photos of the 2019 legal documents.

Count 9: Illinois State Law Intentional Infliction of Emotional Distress

claim against all Defendants.

Count 10: Section 1983 supervisor liability claim against Swells,

Barwick, Grissom, Brookhart, Lindsay, and Fanning for

facilitating, approving, or condoning a pattern and practice of

misconduct.

Count 11: Illinois state law indemnification claim against all Defendants

pursuant to 745 ILCS 10/9-102.

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. Any other claim that is

mentioned in the Amended Complaint but not addressed in this Order should be

considered dismissed without prejudice as inadequately pled under the Twombly

pleading standard.1

1 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (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”).

SEVERANCE

Once again, Gakuba tries to tie his 2019 claims regarding the destruction of his

property with his current claims regarding his legal boxes by alleging a vast conspiracy

between the parties. At a minimum, to present a claim for a conspiracy, a plaintiff must

“demonstrate that the conspirators have an agreement to inflict injury or harm upon him.”

Sow v. Fortville Police Dep’t, 636 F.3d 293, 304-05 (7th Cir. 2011). “The agreement may be

inferred from circumstantial evidence, but only if there is sufficient evidence that would

permit a reasonable jury to conclude that a meeting of the minds had occurred and that the

parties had an understanding to achieve the conspiracy’s objectives.” Id. at 305 (citation

omitted). Other than stating that Defendants acted “in conspiracy” and “in further

conspiracy” he fails to allege any facts that would suggest a meeting of the minds among the

various Defendants. Gakuba alleges that he filed numerous grievances against various

prisoner staffers and that these events don’t happen in isolation or at random (Doc. 15, pp. 25-

26). But he offers nothing but his own belief that Defendants acted in conspiracy with each

other. The events occurred some two years apart and he has offered no allegations to suggest

a meeting of the minds.

Without the conspiracy claim tying the allegations together, Gakuba presents two

distinct incidents regarding his legal boxes: one which occurred in 2019 and one in 2021.

Although Gakuba does identify Wright, Barwick, and Swells as witnesses to the destroyed

legal boxes in 2019, the allegations in his Amended Complaint do not suggest that they

participated in the destruction. He alleges that they were evasive about grievances he filed,

which he believes makes them part of a conspiracy of a “blue wall of silence” (Doc. 14, p. 22).

But to the extent he alleges that Swells and Grissom failed to respond to grievances regarding

the 2019 destruction of his legal materials, Defendants cannot be liable simply for denying or

failing to respond to grievances. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011) (“[T]he

alleged mishandling of [a prisoner’s] grievance by persons who otherwise did not cause or

participate in the underlying conduct states no claim.”); George v. Smith, 507 F.3d 605, 609-10

(7th Cir. 2007).

Thus, the claims regarding his 2019 legal boxes are unrelated to his current claims

regarding his legal boxes being held at Vienna after his release. Although the Court initially

deemed that the claims regarding his 2019 legal materials were barred by the statute of

limitations, Gakuba maintains that he was still in the process of exhausting his claims and,

thus, the claims were not barred.2 Based on this new allegation, the Court will sever the

claims regarding the 2019 destruction of his legal documents for review in a new case. The

Clerk of Court is ORDERED to open a new case against John Doe #1 and Brookhart.

PRELIMINARY DISMISSALS

As to the claims remaining in this case, Counts 1-7, 9-11 related to the refusal to mail

his legal boxes in 2021,3 Gakuba also attempts to bring claims against two IDOC attorneys,

Camile Lindsay and Robert Fanning. He alleges they “failed to play it straight” with him

2 Gakuba maintains that this Court dismissed nearly identical property destruction claims in Gakuba

v. Wright, Case No. 19-cv-1274 on the basis that he failed to exhaust his administrative remedies. But

that case focused on access to the courts claims against Karen Pannier for limiting Gakuba’s access to

the law library and legal materials. See Case No. 19-cv-1274 (Doc. 86, p. 2). Those claims were

dismissed on the basis that Gakuba failed to exhaust his administrative remedies. Gakuba did

previously raise an issue regarding the destruction of his legal materials during his transfer to Vienna.

See Gakuba v. Wampler, Case No. 19-cv-1272-SMY. But Gakuba chose not to pursue that case and it was

voluntarily dismissed on January 29, 2020.

3 Count 8 is only related to the destruction of an iPhone relevant to Gakuba’s legal documents in 2019

and is unrelated to the 18 banking boxes which were not mailed to Gakuba upon his release.

about whether his documents would be mailed to him. Other than re-laying information from

their clients, there is no indication that the attorneys themselves violated Gakuba’s rights.

Thus, Lindsay and Fanning are also DISMISSED without prejudice.

Further, Gakuba maintains that Swells retired in 2020 (Doc. 14, p. 21) well before

Gakuba packed his boxes for his 2021 release. There is no indication that Swells participated

in the refusal to mail his legal documents. Accordingly, all claims against Swells are

DISMISSED without prejudice.

Gakuba also purports to bring state law claims for conspiracy (Count 5), illegal tort

conversion (Count 6), gross negligence (Count 7), intentional infliction of emotional distress

(Count 9), and indemnification (Count 11), but offers only conclusory statements which do

not state a claim. Thus, the state law claims are also DISMISSED without prejudice.

REMAINING CLAIMS

Count 1

The Seventh Circuit uses a two-part test to decide if prison administrators have

violated the right of access to the courts. Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004). First,

the prisoner must show that prison officials interfered with his legal materials. Devbrow v.

Gallegos, 735 F.3d 584, 587 (7th Cir. 2013) (citing Lewis v. Casey, 518 U.S. 343, 348 (1996)).

Second, he must be able to show “some quantum of detriment caused by the challenged

conduct of state officials resulting in the interruption and/or delay of plaintiff’s pending or

contemplated litigation.” Alston v. DeBruyn, 13 F.3d 1036, 1041 (7th Cir. 1994). To state a claim,

a plaintiff must explain “the connection between the alleged denial of access to legal materials

and an inability to pursue a legitimate challenge to a conviction, sentence, or prison

conditions.” Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009) (internal quotation and citation

omitted); accord Guajardo-Palma v. Martinson, 622 F.3d 801, 805-06 (7th Cir. 2010). This requires

Gakuba to identify the underlying claim that was lost. See Christopher v. Harbury, 536 U.S. 403,

416 (2002); Steidl v. Fermon, 494 F.3d 623, 633 (7th Cir. 2007).

Gakuba maintains that he has ongoing state and federal suits which he will need his

18 legal boxes to pursue. He indicates that the documents are for collateral attacks to his

conviction and to his conditions of confinement and cites to three cases: Gakuba v . Swells,

Case No. 20-cv-277-SMY; Gakuba, Case No. 12-cv- 7296, and In re: Gakuba, Case No. 21-2833

(USCA 3rd Circuit). At this stage, the Court finds that the allegations in Count 1 are sufficient

to proceed.

Count 2

Gakuba again fails to state a Title VI violation. As to Gakuba’s Title VI claim, Title VI

of the Civil Rights Act prohibits discrimination on the basis of race by a recipient of federal

funds:

No person in the United States shall, on the ground of race, color, or national

origin, be excluded from participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving Federal

financial assistance.

42 U.S.C. § 2000d.

To prevail on this claim, Gakuba must plead intentional discrimination. See Guardians

Ass’n v. Civil Serv. Comm’n of New York City, 463 U.S. 582, 593 (1983). As with his original

Complaint, Gakuba merely states that he is black and Defendants are white. This is simply

not enough to state a Title VI claim. He does not allege that other inmates of a different race

were treated differently or that Defendants made any comments of a racial nature that would

suggest that they were discriminating against him based on his race. See Khan v. Midwestern

University, 147 F. Supp. 3d 718, 721 (N.D. Ill. 2015) (“Title VI prohibits only intentional

discrimination”) (collecting cases). Count 2 is DISMISSED without prejudice.

Count 3

Count 3 purports to bring a Fourteenth Amendment claim, which Gakuba labels a

malicious abuse of process (Doc. 14, p. 36). But the tort of abuse of process is a state law claim

which requires “(1) the existence of an ulterior purpose or motive and (2) some act in the use

of legal process not proper in the regular prosecution of the proceedings.” Kumar v. Bornstein,

820 N.E.2d 1167, 1173 (Ill. App. Ct. 2004). To the extent that Gakuba alleges that Defendants

violated 20 Ill. Admin. Code § 525.130(a) by failing to send his legal boxes to his Baltimore

address after his release, the violation of a state law does not amount to a constitutional

violation. Pasiewicz v. Lake Cnty. Forest Preserve Dist., 270 F.3d 520, 526 (7th Cir. 2001);

Guajardo-Palma v. Martinson, 622 F.3d 801, 806 (2010) (“violation of state law is not a ground

for a federal civil rights suit”); Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir.2003) (“[Section]

1983 protects plaintiffs from constitutional violations, not violations of state laws or, in this

case, departmental regulations and police practices”). Thus, his claim under the Fourteenth

Amendment is DISMISSED without prejudice.

Count 4

At this stage, Gakuba state a viable retaliation claim against Defendants Wright,

Barwick, and Grissom. He alleges that Defendants refused to send his legal boxes due to the

numerous cases he has filed against them.

Count 10

Finally, in Count 10, Gakuba purports to raise a claim for supervisory liability

pursuant to 42 U.S.C. § 1983. But respondeat superior, or supervisor, liability is not recognized

under Section 1983. Shields v. Illinois Dep’t of Corr., 746 F.3d 782 (7th Cir. 2014) (citing Iskander

v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982)). A supervisory official can be held

liable, however, if he knew about the conduct and facilitated, approved, condoned, or turned

a blind eye to it. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Here, Gakuba alleges

that the supervisor officials, Barwick and Grissom, knew about the withholding of the

documents, it occurred with their knowledge, and they approved, facilitated, and condoned

the action.4 Accordingly, the Court will allow Count 10 to proceed against Barwick and

Grissom at this time. The Court notes that Gakuba already alleges that these individuals

personally violated his rights. This claim appears to be an alternative to the claims against

these Defendants in the other counts.

MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

As to Gakuba’s motion for temporary restraining order, preliminary and permanent

injunction, and declaratory judgment (Doc. 15), he seeks an order stopping the destruction of

his legal boxes. Although he states that the boxes would be destroyed on April 27, 2022,

according to discussions with Catherine Wright, the Court finds no evidence in the record of

a deadline for the destruction of the documents. Gakuba maintains that on April 27, 2022, if

not sooner, the documents will be destroyed and that the “facts are no disputed as the

litigation history of the state action seeking mandamus relief reveals no denials by these

defendants.” (Doc. 15, pp. 7, 8). Although Gakuba points to his pending appeal, that

document also states, without citation or evidence, that the legal materials will be destroyed

4 To the extent Gakuba includes Swells, Brookhart, Lindsay, and Fanning in this claim, they have

already been dismissed from the case.

(Doc. 15-1). It is not clear whether any of the exhibits in Gakuba’s 561-page motion and

exhibits for injunctive relief indicate when the documents will be destroyed. Thus, to the

extent he seeks a temporary restraining order, that request is DENIED. The Court will allow

his motion for preliminary injunction to proceed.

As the current status of Gakuba’s legal boxes is not clear at this time, the Court

ORDERS Defendants to respond to Gakuba’s motion (Doc. 15) within 14 days. Defendants

should indicate the current status of his documents, the future plans for his documents, and

the options offered to Gakuba to obtain his legal materials. They should also respond to

Gakuba’s statement that his attorney offered to have the shipping costs billed to his firm’s

account (Doc. 14, pp. 73-75) and whether that is a viable alternative.

SANCTIONS WARNING

A final note on Gakuba’s Amended Complaint. The first portion of his Amended

Complaint reads like a motion to reconsider rather than an amended pleading. He attacks

the undersigned’s rulings and takes pot shots at the Court’s recent rulings in other cases. He

also includes “Notes” throughout his Amended Complaint where he attacks the

undersigned’s dismissal of his original Complaint.

For example, Gakuba argues that this Court, in dismissing his Complaint and first

request for injunctive relief, employed an objectively unreasonable legal standard

“unfounded in any case law precedence” (Id. at p. 3). He took issue with the Court’s citation

to Planned Parenthood v. Commissioner of Indiana State Dep’t Health, 699 F.3d 962, 972 (7th Cir.

2012), for the standard for a preliminary injunction. Gakuba snidely noted that his case

citation for the injunctive standard was not an abortion case and indicated that he “is neither

gender dysphoric nor planning on seeking an abortion.” (Id. at p. 4).5 He also accused the

Court of applying the wrong standard, and argued that the standard quoted by the Court

was based on the “subjective beliefs manifested in irrational animus towards pro se indigent

Gakuba” (Id. at p. 4).

Gakuba also took issue with the Court’s ruling, believing it to be evidence of a bias

towards him. He argued that the Court displayed “rank duplicity” by finding that his claims

regarding the destruction of his property in 2019 was untimely when the Court previously

found Gakuba failed to exhaust the same claims in Gakuba v. Wright, Case No. 19-cv-1274. (Id.

at p. 12). He noted that the Court should have applied equitable tolling, describing the Court’s

findings as a “duplicitously dismissive statute of limitations rubric” (Id. at p. 13). He describes

this Court’s conduct as “cynicism. Rank duplicity. Bias and prejudice.” (Id.). “Judge

Rosenstengel’s deliberate indifference to these outrageous constitutional violations…appears

to manifest itself in this case through subjectively unreasonable rejections per fanciful

assessments of facts and applications of the law.” (Id. at p. 16). He describes this court as a

“malfunctional… judiciary…concern[ed]…more with gender dysphoria (aberrant debatable

birth defects) that are deemed essential to treat in prison—but not prisoners with handicaps

or disabilities.” (Id.). In another part of his Amended Complaint, he describes this Court’s

assessment of the facts of his original Complaint as “objectively unreasonable” (Id. at p. 24).

He argues that this Court has shown “manifest bias and prejudice” by dismissing his original

5 This appears to be a reference to the Court’s recent orders in Monroe v. Rauner, et al., Case No. 18-cv-

156-NJR, a case dealing with the treatment of gender dysphoria for transgender inmates in IDOC

custody. Gakuba cites to the Court’s ruling in that case on a number of occasions throughout the

Amended Complaint. He compares his case to that case, implying that the undersigned displayed

“shocking cynicism against IDOC” in that case [Monroe] while giving IDOC a pass in his cases

(Doc. 14, p. 12).

Complaint and complains that it committed an equal protection violation by dismissing his

case but ruling in plaintiff’s favor in the Court’s gender dysphoria case. He alleges that the

Court ruled “in favor of political patrons” (Id. at p. 25). He also alleges that the undersigned

is not fair or impartial (Id. at p. 9). He alleges that the Court’s previous Order was “fanciful

facts stitched to contrivances of the law” (Id. at p. 26). He accuses this Court of acting as an

advocate for Defendants (Id. at p. 34).

Gakuba was recently warned by another judge in this District that his behavior would

not be tolerated and could be sanctionable. See Gakuba v. Swells, Case No. 20-cv-277-SMY

(Doc. 89) (Apr. 20, 2022). See In re Mann, 229 F.3d 657, 659 (7th Cir. 2000) (“Litigants are

understandably disappointed when they do not prevail in court, but that does not give them

the license to attack the integrity of the judiciary. Such abusive conduct will not be tolerated,

not even from a pro se litigant.”). He was subsequently warned again that “[a]busive language

directed to the Court is an attack on the integrity of the judiciary.” Id. (Doc. 96, p. 5). Gakuba’s

Amended Complaint in this case was filed prior to District Judge Yandle’s ruling in his other

pending case, but the undersigned reminds Gakuba that such inflammatory, insulting, and

inappropriate commentary will not be tolerated. He is reminded that continued lack of

respect and civility in his filings could result in sanctions, including monetary sanctions and

a filing ban.

DISPOSITION

For the reasons stated above, all Counts against John Doe #1 and Brookhart are

severed into a new case. In the new case, the Clerk is DIRECTED to file the following

documents:

e This Memorandum and Order;

e The Amended Complaint (Doc. 14); and

e Gakuba’s motion to proceed in forma pauperis (Doc. 2).

The only claims remaining in this case are Counts 1-7, 9-11. All claims against Robert

Fanning, Camile Lindsay, and Matthew Swells are DISMISSED without prejudice. Counts

1, 4, and 10 against Catherine Wright, John Barwick, and Matthew Swells will proceed.

Gakuba’s motion to proceed IFP (Doc. 2) is GRANTED.

The Clerk of Court shall prepare for Defendants Catherine Wright, John Barwick, and

Matthew Swells: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a

Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is DIRECTED to mail

these forms, a copy of the Amended Complaint, and this Memorandum and Order to the

defendants’ place of employment as identified by Gakuba. If a 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 that

defendant, and the Court will require that defendant to pay the full costs of formal service,

to the extent authorized by the Federal Rules of Civil Procedure.

If a defendant can no longer be found at the work address provided by Gakuba, the

employer shall furnish the Clerk with the defendant’s current work address, or, if not known,

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

or disclosed by the Clerk.

Defendants are ORDERED to timely file an appropriate responsive pleading to the

Amended Complaint and shall not waive filing a reply pursuant to 42 U.S.C. Section 1997e(g).

16

Pursuant to Administrative Order No. 244, Defendants need only respond to the issues

stated in this Merit Review Order. Defendants are also DIRECTED to respond to Gakuba’s

motion for injunctive relief (Doc. 15) by June 8, 2022.

If judgment is rendered against Gakuba, and the judgment includes the payment of

costs under Section 1915, he will be required to pay the full amount of the costs, regardless

of whether his application to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(f)(2)(A).

Finally, Gakuba 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 seven 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: May 25, 2022 7 (ocuiting

mesh

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

17

Notice to Plaintiff

The Court will take the necessary steps to notify the appropriate defendants of your

lawsuit and serve them with a copy of your Amended Complaint. After service has been

achieved, the defendants will enter their appearance and file an Answer to your Amended

Complaint. It will likely take at least 60 days from the date of this Order to receive the

defendants’ Answer, but it is entirely possible that it will take 90 days or more. When all the

defendants have filed Answers, the Court will enter a Scheduling Order containing important

information on deadlines, discovery, and procedures. Plaintiff is advised to wait until counsel

has appeared for the defendants before filing any motions, to give the defendants notice and

an opportunity to respond to those motions. Motions filed before defendants’ counsel has

filed an appearance will generally be denied as premature. Plaintiff need not submit any

evidence to the Court at this time, unless specifically directed to do so.