Bennett Jr. v. Mitchell

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAY BENNETT, JR., # R74042, )

)

Plaintiff, )

vs. ) Case No. 3:24-cv-00408-GCS

)

DAVID MITCHELL, CHRISTAL CROW, )

LATOYA HUGHES, LT. FRANK, )

C/O BENNETT, C/O RODMAN, )

ROSE LOOS, MRS. McCLURE, )

MRS. STUTZ, C/O COOK, )

C/O HASKINS, SGT. JOHNSON, and )

C/O ANDREWS, )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

Plaintiff Jay Bennett, Jr., was an inmate of the Illinois Department of Corrections

(“IDOC”) incarcerated at Lawrence Correctional Center (“Lawrence”) when he filed this

civil action pursuant to 42 U.S.C. § 1983. He has since been released on parole/mandatory

supervised release.1 Plaintiff seeks redress for alleged violations of his constitutional

rights that occurred while he was confined at Pinckneyville Correctional Center

(“Pinckneyville”). He claims that Pinckneyville officials failed to protect him from harm

and threats by other inmates, used excessive force on him, and were deliberately

indifferent to his mental health needs. Plaintiff seeks monetary damages and injunctive

relief. (Doc. 13, p. 22-23).

1 See the Illinois Department of Corrections website, Individual in Custody Search page,

https://idoc.illinois.gov/offender/inmatesearch.html (last visited July 31, 2024).

Plaintiff’s First Amended Complaint2 is now before the Court for preliminary

review under 28 U.S.C. § 1915A, which requires the Court to screen prisoner complaints

to filter out non-meritorious claims.3 See 28 U.S.C. § 1915A(a). Any portion of the

Complaint that is legally frivolous, malicious, fails to state a claim for relief, or requests

money damages from an immune defendant must be dismissed. See 28 U.S.C. § 1915A(b).

At this juncture, the factual allegations of the pro se Complaint are to be liberally

construed. See Rodriguez v. Plymouth Ambulance Service, 577 F.3d 816, 821 (7th Cir. 2009).

THE FIRST AMENDED COMPLAINT

Plaintiff arrived at Pinckneyville on July 4, 2022. He was transferred there from

Shawnee Correctional Center after having a physical altercation with another inmate who

had an issue with Plaintiff’s homosexuality. (Doc. 13, p. 5). Upon arrival at Pinckneyville,

Plaintiff told Defendant McClure (mental health staff) and internal affairs (“IA”) staff

about his sexual orientation and involvement with transgender inmates at Shawnee,

which puts him at greater risk of harm from other inmates. Plaintiff asked to be housed

with people who are unbiased against gay people, noting that he could only hide his

sexuality until other inmates who know him transfer in from Shawnee, because they

would expose his sexuality to others. McClure and C/O Vaughn (who is not a defendant)

said they could not help him.

2 Plaintiff submitted the First Amended Complaint before the Court conducted the required

merits review of the original Complaint. (Doc. 12).

3 The Court has jurisdiction to screen the Complaint due to Plaintiff’s consent to the full

jurisdiction of a Magistrate Judge (Doc. 7), and the limited consent to the exercise of Magistrate

Judge jurisdiction as set forth in the Memoranda of Understanding between this Court, Wexford

Health Sources, and the IDOC.

Plaintiff was housed in general population (R-2-C-69) with a known gang member.

Plaintiff was fearful for his safety due to the cellmate’s gang ties, and he asked his

boyfriend to call the prison to request they move Plaintiff to a safer place. The boyfriend

spoke twice to Defendant Bennett (Internal Affairs), who said an IA officer would speak

to Plaintiff but that never happened, and Plaintiff was not moved. (Doc. 13, p. 6-7).

In November 2022, two former Shawnee inmates were transferred to Plaintiff’s

housing unit. Plaintiff was “forced” to pay them with commissary to keep them from

exposing his homosexuality. (Doc. 13, p. 6-7). Because Plaintiff had not received any help

from prison staff to keep him safe, he made a shank. The shank was discovered on

November 23, 2022, in a cell search. Plaintiff was punished with 60 days in segregation.

He filed a grievance raising his safety concerns, but nothing was done. (Doc. 13, p. 7, 49-

53).

After writing to the mental health department in January 2023, Plaintiff saw

Defendant Stutz (mental health provider) about his safety concerns and need for a safe

placement. (Doc. 13, p. 8, 54-55). Stutz and another provider told Plaintiff they could not

control his placement but would try to notify the placement staff of his concerns.

Nonetheless, on January 23, 2023, Plaintiff was placed back on the R-2 wing where he had

been threatened. He did not make his fear known to staff again because they had

previously failed to help him.

In July 2023, Plaintiff was placed in R4-B-27 after release from segregation. On

October 1, 2023, Jamerson, a former Shawnee inmate who was hostile to Plaintiff, was

placed in R4-B-22 near Plaintiff. (Doc. 13, p. 8). That day, Jamerson told other inmates

Plaintiff was a “fag” and told Plaintiff he needed to “walk himself” to segregation. (Doc.

13, p. 9). Plaintiff informed Defendants C/O Cook and C/O Haskins that he and

Jamerson were having issues, and it would turn physically violent if they were not

separated. Cook and Haskins refused to take any action to protect Plaintiff.

Jamerson continued his harassment, and on October 4, 2023, Plaintiff planned to

report it to IA by phone, but Jamerson intercepted him. (Doc. 13, p. 12-13). Jamerson told

Plaintiff he would beat his ass if he didn’t refuse housing to get off the wing. He further

threatened that if Plaintiff told staff, Jamerson would have his gang members get Plaintiff

wherever he went. Plaintiff asked Jamerson to leave him alone and tried to walk away,

but Jamerson punched Plaintiff in the face. Plaintiff fought back to protect himself and

was injured, requiring five stitches over his left eye; he also sustained multiple bruises.

Plaintiff has had flashbacks and nightmares since then.

On October 13, 2023, Plaintiff asked for a crisis team because he was having

suicidal thoughts from the incident. (Doc. 13, p. 10-11). Defendant Sgt. Johnson

responded but refused to let Plaintiff talk to mental health. Plaintiff showed Johnson a

piece of metal and said he would swallow it to kill himself. Johnson said he didn’t care

and again refused to summon mental health. Plaintiff swallowed the metal item. Johnson

put Plaintiff in handcuffs and left him in the shower, where Plaintiff stepped over the

cuffs so he could get a drink of water. Johnson returned and told Plaintiff to fix the cuffs.

Plaintiff refused and said if he didn’t get to talk to mental health, he would swallow a

pair of fingernail clippers that he had in his mouth. Plaintiff put his hands through the

chuckhole for Johnson to fix the cuffs. Johnson reapplied the handcuffs so tightly that he

cut off Plaintiff’s circulation. He then jerked the cuffs upward to jam Plaintiff’s wrists

painfully against the chuckhole. Plaintiff was taken to health care and sent to the

Carbondale hospital where the metal piece was removed via an endoscopy. (Doc. 13, p.

56-59).

On October 14-16, 2023, Plaintiff sought help from Defendants McClure and Loos

(mental health staff) for his flashbacks, nightmares, anxiety, stress, depression, and

suicidal ideations related to the incidents with Jamerson and Johnson, but they did

nothing to help him. (Doc. 13, p. 12). Plaintiff was released from suicide watch on October

16, 2023, and he was sent back to segregation.

On October 18, 2023, Plaintiff was released from segregation and placed in R-3-B-

27. He filed a grievance (No. 3546-10-23) requesting placement in protective custody

(“PC”) or a transfer where he could be housed with a non-biased LGBTQ+ community.

(Doc. 13, p. 12-13). An IA officer interviewed Plaintiff two days later and placed him on

PC/TC status in R-6-A-55.

On October 23, 2023, Plaintiff had a verbal altercation in the dayroom with

Defendant C/O Andrews, who called Plaintiff a “faggot ass bitch.” When Plaintiff talked

back, Andrews said, “Suck my dick, you[‘re] on PC status cause you[’re] a scary ass

faggot.” (Doc. 13, p. 14). Plaintiff refused Andrews’s order to lock up. The sergeant

intervened and asked Plaintiff to lock up. Andrews returned an hour later, prompting

Plaintiff to request a crisis team. Andrews responded, “fuck you faggot, I don’t care about

your mental health.” Id. Plaintiff attempted to file a PREA4 complaint by calling the PREA

phone line and filing a grievance, but he never got a response.

The next day, another inmate came by Plaintiff’s PC cell and threatened to beat

him for snitching on Jamerson when Plaintiff got out. (Doc. 13, p. 15). Plaintiff told the IA

officer and filed a grievance.

On November 23, 2023, Plaintiff (still in PC) was made to eat in the chow hall

among general population inmates. On December 13, 2023, he was forced to attend a re-

entry class with general population inmates. Staff did nothing to protect Plaintiff when

he raised safety concerns.

On December 18, 2023, Defendant C/O Rodman told Plaintiff that he could not

stay on PC status unless he could provide Rodman with the names of those threatening

him. (Doc. 13, p. 16). Plaintiff didn’t know the names, but he still feared for his life.

Plaintiff didn’t want to get a ticket for refusing housing, so he returned to general

population the next day. Plaintiff continued to fear for his physical safety and endured

mental and emotional distress.

On January 4, 2024, Plaintiff was ticketed for having a homemade weapon and

placed in segregation/restrictive housing. He was denied a transfer because he was due

for release from prison soon. He again requested PC status but got no response.

On February 28, 2024, Plaintiff asked for a crisis team, but the wing officer ignored

him. Plaintiff tried to take his life by overdosing on a drug and nearly succeeded but was

4 Prison Rape Elimination Act.

saved by his cellmate performing CPR for 25 minutes while the officer ignored the

situation. (Doc. 13, p. 17-18). Plaintiff was revived and taken to the Pinckneyville hospital.

A few days later, Plaintiff was interviewed by IA and allowed to fill out a PC

request. On March 8, 2024, Plaintiff was told he would be transferred to Lawrence. He

didn’t believe this, so he overdosed again. After returning from the hospital, on March 9,

2024, Plaintiff was transferred to Lawrence and placed in segregation. (Doc. 13, p. 18-19).

Plaintiff continues to fear being around other people, and he rarely asks for help

because he is accustomed to being ignored. He made the choice to get into trouble and

go to segregation because staff have refused to keep him safe. (Doc. 13, p. 19).

As relief, Plaintiff seeks an injunction requiring Defendants to follow their own

rules and stop violating prisoners’ rights. (Doc. 13, p. 22). He also requests compensatory

and punitive damages. (Doc. 13, p. 23).

DISCUSSION

Based on the allegations in the Complaint, the Court designates the following

claims in this pro se action:

Count 1: Eighth Amendment claims against McClure and Stutz for

failing to obtain a safe housing placement for Plaintiff in July

2022 and January 2023.

Count 2: Eighth Amendment failure to protect claim against Bennett

for ignoring requests to move Plaintiff away from the gang-

affiliated cellmate in approximately July-August 2022.

Count 3: Eighth Amendment failure to protect claim against Cook and

Haskins for ignoring Plaintiff’s pleas to be separated from

Jamerson on or about October 1, 2023, which allowed

Jamerson to attack Plaintiff on October 4, 2023.

Count 4: Eighth Amendment deliberate indifference to serious mental

health needs claim against Johnson for ignoring Plaintiff’s

threat to self-harm and request for a mental health crisis team

on October 13, 2023.

Count 5: Eighth Amendment excessive force claim against Johnson for

cuffing Plaintiff too tightly and yanking his wrists against the

chuckhole on October 13, 2023.

Count 6: Eighth Amendment claim against McClure and Loos for

failing to provide Plaintiff with mental health treatment or

assistance in October 2023.

Count 7: Eighth Amendment deliberate indifference to serious mental

health needs claim against Andrews for refusing Plaintiff’s

request for a mental health crisis team after Andrews verbally

harassed Plaintiff on October 23, 2023.

Count 8: Eighth Amendment failure to protect claim for requiring

Plaintiff to mingle with general population inmates while he

was in protective custody in November and December 2023.

Count 9: Eighth Amendment failure to protect claim against Rodman

for removing Plaintiff from protective custody in December

2023.

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 Complaint but not addressed in this Order should be considered

dismissed without prejudice as inadequately pled under the Twombly pleading

standard.5

5 See, e.g., Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (noting that an action fails

to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim

that is plausible on its face.”).

Preliminary Dismissals/Injunctive Relief

Plaintiff includes Pinckneyville Wardens David Mitchell and Christal Crow,

Acting IDOC Director Latoya Hughes, and Lt. Frank as named Defendants, but he fails

to mention them at all in his statement of claim and does not describe what they allegedly

did to violate his constitutional rights. (Doc. 13, p. 1-3, 5-23). Merely invoking the name

of a potential defendant is not sufficient to state a claim against that individual. See, e.g.,

Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998) (noting that “[a] plaintiff cannot state a

claim against a defendant by including the defendant’s name in the caption.”).

Additionally, a defendant cannot be held liable for the misconduct of subordinate staff

merely because a defendant held supervisory authority. See Sanville v. McCaughtry, 266

F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th

Cir. 2001)). Because Plaintiff has not articulated any claim against Mitchell, Crow,

Hughes, or Frank, these defendants will be dismissed from the action without prejudice.

The current Warden of Pinckneyville, in his/her official capacity, would be the

proper defendant for the purpose of implementing any injunctive relief that might be

ordered. See Gonzales v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). However, because

Plaintiff is no longer incarcerated at Pinckneyville, his request for injunctive relief has

become moot. See Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir. 2004). Only if Plaintiff can

show a realistic possibility that he would again be incarcerated at Pinckneyville under

the conditions described in the Complaint, would it be proper for the Court to consider

injunctive relief. See Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011) (citing Ortiz v.

Downey, 561 F.3d 664, 668 (7th Cir. 2009)). Accordingly, there is no reason for the

Pinckneyville Warden to remain as a defendant.

Official Capacity Claims

Plaintiff raises claims against each defendant in his or her individual and official

capacities. However, Plaintiff’s claims for monetary damages may only be pursued

against state officials in their individual capacities. See Brown v. Budz, 398 F.3d 904, 918

(7th Cir. 2005); Shockley v. Jones, 823 F.2d 1068, 1070 (7th Cir. 1987). Accordingly, the

official capacity claims against the remaining individual defendants are dismissed

without prejudice.

Count 1

“[P]rison officials have a duty . . . to protect prisoners from violence at the hands

of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal citations omitted);

see also Pinkston v. Madry, 440 F.3d 879, 889 (7th Cir. 2006). Typically, the plaintiff must

show that he complained to prison officials about a specific and credible danger to his

safety. See Santiago v. Walls, 599 F.3d 749, 758-759 (7th Cir. 2010); Pope v. Shafer, 86 F.3d 90,

92 (7th Cir. 1996). To state a claim for failure to protect, a plaintiff must plead facts

suggesting he is incarcerated under conditions posing a substantial risk of serious harm,

and the defendants acted with “deliberate indifference” to that danger. Farmer, 511 U.S.

at 834; Pinkston, 440 F.3d at 889.

Plaintiff asked McClure to help him be placed with inmates who were tolerant of

gay people when he arrived at Pinckneyville in July 2022, and he made a similar request

to Stutz in January 2023. These mental health providers told Plaintiff they had no control

over placement decisions. Stutz said she would contact the placement staff about his

concerns; it is unknown whether she did so. In November 2022, Plaintiff was housed with

inmates who threatened to expose his homosexuality to others. While Plaintiff

capitulated to their extortion, he does not allege he was physically harmed. Based on

these allegations, it cannot be said that McClure or Stutz were deliberately indifferent to

Plaintiff’s concerns on these occasions. In July 2022, Plaintiff had not yet experienced any

threat to his safety. In January 2023, Plaintiff likewise had not been physically harmed,

nor does he indicate he received threats of physical harm. Further, Stutz had no apparent

authority to change Plaintiff’s housing location. Count 1 will be dismissed for failure to

state a claim upon which relief may be granted.

Count 2

Plaintiff was placed with a known gang member in July-August 2022; this made

Plaintiff fearful for his safety. He alleges his boyfriend spoke twice by telephone to IA

Officer Bennett, who said he would speak to Plaintiff about moving him to a different

cell. However, neither Bennett nor any other IA officer ever contacted Plaintiff, and

Plaintiff was never moved. Plaintiff does not allege that this cellmate ever issued any

threats to harm Plaintiff or that he was physically harmed.

A prison official may be liable for deliberately endangering an inmate’s safety

when the official knows that the inmate faces a significant risk of harm yet intentionally

or recklessly exposes the inmate to that risk anyway. See Budd v. Motley, 711 F.3d 840, 843

(7th Cir. 2013); Brown v. Budz, 398 F.3d 904, 915 (7th Cir. 2005) (collecting cases); Wright v.

Miller, No. 13-1670, 561 Fed. Appx. 551, 555 (7th Cir. April 14, 2014). Here, Plaintiff does

not disclose what information his boyfriend allegedly gave to Bennett, and Plaintiff

himself did not directly contact Bennett. Thus, the facts as pled do not suggest Bennett

was sufficiently informed of the risk Plaintiff allegedly faced from this cellmate, such that

his lack of action could amount to deliberate indifference, rather than mere negligence.

Accordingly, Count 2 will be dismissed without prejudice.

Count 3

In contrast, Plaintiff had a history of hostility from inmate Jamerson as Jamerson

had previously voiced threats to Plaintiff. On October 1, 2023, Plaintiff informed

Defendants Cook and Haskins about the likelihood of physical violence if he and

Jamerson remained in the same housing area. Cook and Haskins took no action and three

days later, Jamerson verbally threatened Plaintiff and then punched him, starting a fight

in which Plaintiff was injured.

These allegations indicate that Plaintiff complained to these defendants about a

specific and credible physical danger from Jamerson. See Santiago, 599 F.3d at 758-759;

Pope, 86 F.3d at 92. The failure by Cook and Haskins to act to mitigate that threat supports

Plaintiff’s claim that they were deliberately indifferent to the risk he faced. The failure to

protect claim in Count 3 may therefore proceed.

Count 4

A prison official’s deliberate indifference to a prisoner’s serious medical or mental

health needs violates the Eighth Amendment’s prohibition against cruel and unusual

punishment. See Rasho v. Elyea, 856 F.3d 469, 475 (7th Cir. 2017). To state such a claim, a

prisoner must plead facts and allegations suggesting that (1) he suffered from an

objectively serious medical or mental health condition, and (2) the defendant acted with

deliberate indifference to his medical/mental health needs. Id. Suicide is objectively

serious. As such, “prison officials must take reasonable preventative steps when they are

aware that there is a substantial risk that an inmate may attempt to take his own life.”

Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d 525, 529 (7th Cir. 2000).

Plaintiff alleges that on October 13, 2023, soon after the incident with Jamerson, he

asked Defendant Johnson for a crisis team and showed Johnson a piece of metal he

planned to swallow to kill himself. Johnson told Plaintiff he didn’t care, and he refused

to contact a mental health provider. Count 4 for deliberate indifference to Plaintiff’s

mental health condition will proceed for further consideration.

Count 5

After Plaintiff swallowed the piece of metal, Johnson left him in the shower in

handcuffs. When Johnson needed to remove and reapply the cuffs, he allegedly applied

them so tightly that Plaintiff’s circulation was cut off. Johnson then allegedly jerked the

cuffs upward while Plaintiff’s hands were outside the chuckhole, jamming Plaintiff’s

wrists against the chuckhole and inflicting pain.

“Correctional officers violate the Eighth Amendment when they use force not in a

good faith effort to maintain or restore discipline, but maliciously and sadistically for the

very purpose of causing harm.” Wilborn v. Ealey, 881 F.3d 998, 1006 (7th Cir. 2018); see also

Wilkins v. Gaddy, 559 U.S. 34 (2010). The Complaint alleges this is exactly what Johnson

did. Count 5 for excessive force may also proceed against Johnson.

Count 6

Between October 14, 2023, and October 16, 2023, after Plaintiff states he was

attacked by Jamerson and attempted to kill himself in front of Defendant Johnson, he

sought help for his mental health symptoms from McClure and Loos. They allegedly

failed to provide him with any treatment for his suicidal ideations, flashbacks,

nightmares, anxiety, stress, and depression. Those symptoms indicate that Plaintiff

suffered from objectively serious mental health conditions. A defendant’s deliberate

indifference to a prisoner’s serious medical or mental health needs violates the Eighth

Amendment’s prohibition against cruel and unusual punishment. See Rasho, 856 F.3d at

475. Plaintiff’s allegations that McClure and Loos disregarded his mental health

conditions in October 2023 are sufficient to state a claim at this stage. Accordingly, the

deliberate indifference claims in Count 6 against McClure and Loos for their

actions/inactions in October 2023 will proceed.

Count 7

Plaintiff’s claim against C/O Andrews arose while Plaintiff was in protective

custody on October 23, 2023, not long after the incidents with Jamerson and Johnson and

his suicide attempt. Anderson used abusive and homophobic language toward Plaintiff,

suggested a sexual act, and refused Plaintiff’s request for a mental health crisis team,

saying he didn’t care about Plaintiff’s mental health. These allegations suffice to support

a deliberate indifference claim. Count 7 will thus proceed against Andrews.

Count 8

The incidents Plaintiff describes on November 23, 2023, and December 13, 2023,

when he was required to interact with general population inmates despite being in

protective custody status, are concerning. However, Plaintiff fails to associate any

defendant with these occurrences. For that reason, Count 8 will be dismissed without

prejudice.

Count 9

Rodman allegedly removed Plaintiff from protective custody on December 18,

2023, because Plaintiff was unable to provide names of inmates who were threatening

him. Back in general population, Plaintiff continued to fear for his physical safety.

As discussed in Count 2 above, a defendant may be liable for deliberately

endangering an inmate’s safety when the official knows that the inmate faces a significant

risk of harm yet intentionally or recklessly exposes the inmate to that risk. See Budd, 711

F.3d at 843; Brown, 398 F.3d at 915 (collecting cases); Wright, 561 Fed. Appx. at 555. This

may include exposing an inmate to psychological harm or a heightened risk of future

injury, even in the absence of an actual attack. See Wright, 561 Fed. Appx. at 555. Given

Plaintiff’s recent history with Jamerson, who attacked Plaintiff and informed other

inmates of Plaintiff’s sexual orientation, Plaintiff had a particular vulnerability due to this

status. Rodman’s knowledge of that heightened risk and failure to keep Plaintiff in

protective custody may amount to deliberate indifference. Count 9 may also proceed at

this stage.

PENDING MOTIONS

Plaintiff’s Motions for Appointment of Counsel (Doc. 3, 4) are DENIED without

prejudice. There is no constitutional or statutory right to counsel in federal civil cases. See

Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010). In determining whether to recruit

counsel, the Court considers whether the pro se party has made reasonable efforts to

secure counsel and his ability to litigate the case on his own. See Pruitt v. Mote, 503 F.3d

647, 654 (7th Cir. 2007).

Here, Plaintiff has not established any efforts made to obtain counsel. Moreover,

at this early stage of the litigation, it is difficult to accurately evaluate the need for

assistance of counsel, so recruitment of counsel would be premature. See, e.g., Kadamovas

v. Stevens, 706 F.3d 843, 845 (7th Cir. 2013) (stating that “until the defendants respond to

the complaint, the plaintiff's need for assistance of counsel . . . cannot be gauged.”).

Should Plaintiff encounter difficulties in self-representation as this case proceeds,

he may refile his motion seeking recruitment of counsel. If he renews his request, he

should submit at least 3 rejection letters from attorneys to show that he has made

reasonable efforts to obtain counsel.

DISPOSITION

The Complaint states colorable claims in Count 3 against Cook and Haskins, in

Counts 4 and 5 against Johnson, in Count 6 against McClure and Loos, in Count 7 against

Andrews, and in Count 9 against Rodman. Counts 1, 2, and 8 are DISMISSED without

prejudice for failure to state a claim upon which relief may be granted. Defendants

Mitchell, Crow, Hughes, Frank, Bennett, and Stutz are DISMISSED from the action

without prejudice.

The Clerk shall prepare for C/O Rodman, Rose Loos, Mrs. McClure, C/O Cook,

C/O Haskins, Sgt. Johnson, and C/O Andrews: (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 Complaint, and this

Memorandum and Order to Defendants’ place of employment as identified by Plaintiff.

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 the Defendant, and the Court will require the Defendant

to pay the full costs of formal service, to the extent authorized by the Federal Rules of

Civil Procedure.

If a Defendant cannot be found at the work address provided by Plaintiff, the

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

known, the 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 and 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 Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).

Pursuant to Administrative Order No. 244 and Local Rule 8.2, Defendants need only

respond to the issues stated in this Merit Review Order.

Plaintiff is ADVISED that if judgment is rendered against him and the judgment

includes the payment of costs under 28 U.S.C. § 1915, he will be required to pay the full

amount of the costs, even though his application to proceed in forma pauperis was granted.

See 28 U.S.C. § 1915(f)(2)(A).

Plaintiff is further ADVISED that he is under a continuing obligation to keep the

Clerk of Court and the opposing parties 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 14 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. PROC. 41(b).

Finally, based on the allegations in the Complaint, the Clerk of Court is

DIRECTED to ENTER the standard qualified protective order pursuant to the Health

Insurance Portability and Accountability Act (“HIPAA”).

IT IS SO ORDERED.

Digitally signed by

DATED: August 20, 2024. ae . Judge Sison

Get 2. Dade Date: 2024.08.20

10:03:35 -05'00'

GILBERT C. SISON

United States Magistrate Judge

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 Complaint. After service has been

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

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