The opinion of the court was delivered by: JAMES FOREMAN, Senior District Judge
Plaintiff, formerly an inmate in the United States Penitentiary
in Marion, Illinois, brings this action for alleged violations of
his constitutional rights by persons acting under the color of
federal authority. See Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). Plaintiff previously was granted leave to
proceed in forma pauperis, and he has tendered his initial
partial filing fee as ordered.
In this action, Plaintiff first alleges that on October 10,
2001, Defendant Nash deliberately ran him "face first" into a
wall, in violation of his rights under the Eighth Amendment. He
then alleges that on October 11, 2001, during an interrogation,
he was slapped, choked, stepped on, and kneed in the groin by
Defendants Baker, Ellet, Schembre and Unknown Party, in violation
of his rights under the Eighth Amendment.
The intentional use of excessive force by prison guards against
an inmate without penological justification constitutes cruel and unusual
punishment in violation of the Eighth Amendment and is actionable
under Section 1983. Hudson v. McMillian, 503 U.S. 1, 6-7
(1992); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir.
2000). "[W]henever prison officials stand accused of using
excessive physical force in violation of the Cruel and Unusual
Punishments Clause, the core judicial inquiry is . . . whether
force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm."
Hudson, 503 U.S. at 6-7. An inmate seeking damages for the use
of excessive force need not establish serious bodily injury to
make a claim, but not "every malevolent touch by a prison guard
gives rise to a federal cause of action. . . . [the] prohibition
of `cruel and unusual' punishment necessarily excludes from
constitutional recognition de minimis uses of physical force,
provided that the use of force is not of a sort `repugnant to the
conscience of mankind.'" Id. at 9-10; see also Outlaw v.
Newkirk, 259 F.3d 833, 837-38 (7th Cir. 2001).
Based on these standards, the Court is unable to dismiss any
portion of the complaint at this point in the litigation. See
28 U.S.C. § 1915A.
IT IS HEREBY ORDERED that Plaintiff shall complete and submit
a USM-285 form for Defendants NASH, BAKER, SCHEMBRE and ELLET
within THIRTY (30) DAYS of the date of entry of this Memorandum
and Order. The Clerk is DIRECTED to send Plaintiff FOUR (4)
USM-285 forms with Plaintiff's copy of this Memorandum and Order.
Plaintiff is advised that service will not be made on a
defendant until Plaintiff submits a properly completed USM-285
form for that defendant.
The Clerk is DIRECTED to prepare Form 1A (Notice of Lawsuit
and Request for Waiver of Service of Summons) and Form 1B (Waiver of Service of
Summons) for Defendants NASH, BAKER, SCHEMBRE and ELLET. The
Clerk shall forward those forms, USM-285 forms submitted by
Plaintiff, and sufficient copies of the complaint to the United
States Marshal for service.
The United States Marshal is DIRECTED, pursuant to Rule
4(c)(2) of the Federal Rules of Civil Procedure, to serve process
on Defendants NASH, BAKER, SCHEMBRE and ELLET in the manner
specified by Rule 4(d)(2) of the Federal Rules of Civil
Procedure, and on the United States Attorney for the Southern
District of Illinois and the Attorney General of the United
States, Washington, D.C., pursuant to Rule 4(i) of the Federal
Rules of Civil Procedure. For purposes of computing the passage
of time under Rule 4(d)(2), the Court and all parties will
compute time as of the date it is mailed by the Marshal, as noted
on the USM-285 form. Service shall not be made on the Unknown
Defendants until such time as Plaintiff has identified them by
name on a USM-285 form and in a properly filed amended complaint.
Plaintiff is ADVISED that it is Plaintiff's responsibility to
provide the Court with the names and service addresses for these
With respect to former employees of Bureau of Prisons who no
longer can be found at the work address provided by Plaintiff,
the Bureau of Prisons shall furnish the Marshal with the
defendant's last-known address upon issuance of a court order
which states that the information shall be used only for purposes
of effectuating service (or for proof of service, should a
dispute arise) and any documentation of the address shall be
retained only by the Marshal. Address information obtained from
the B.O.P. pursuant to this order shall not be maintained in the court file, nor disclosed by the Marshal.
The United States Marshal shall file returned waivers of
service as well as any requests for waivers of service that are
returned as undelivered as soon as they are received. If a waiver
of service is not returned by a defendant within THIRTY (30)
DAYS from the date of mailing the request for waiver, the United
States Marshal shall:
Request that the Clerk prepare a summons for that
defendant who has not yet returned a waiver of
service; the Clerk shall then prepare such summons as
Personally serve process upon the defendant
pursuant to Rule 4 of the Federal Rules of Civil
Procedure and 28 U.S.C. § 566(c).
Within ten days after personal service is effected,
the United States Marshal shall file the return of
service for the defendant, along with evidence of any
attempts to secure a waiver of service of process and
of the costs subsequently incurred in effecting
service on said defendant. Said costs shall be
enumerated on the USM-285 form and shall include the
costs incurred by the Marshal's office for
photocopying additional copies of the summons and
complaint and for preparing new USM-285 forms, if
required. Costs of service will be taxed against the
personally served defendant in accordance with the
provisions of Federal Rule of Civil Procedure 4(d)(2)
unless the defendant shows good cause for such
Plaintiff is ORDERED to serve upon Defendants or, if
appearance has been entered by counsel, upon that attorney, a
copy of every further pleading or other document submitted for
consideration by this Court. He shall include with the original
paper to be filed with the Clerk of the Court a certificate
stating the date that a true and correct copy of any document was
mailed to defendant or his counsel. Any paper received by a
district judge or magistrate judge which has not been filed with
the Clerk or which fails to include a certificate of service will
be disregarded by the Court. 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 Local Rule 72.1(a)(2), this cause is REFERRED to
a United States Magistrate Judge for further pre-trial
Further, this entire matter is hereby REFERRED to a United
States Magistrate Judge for disposition, as contemplated by Local
Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties
consent to such a referral.
Plaintiff is under a continuing obligation to keep the Clerk
and each opposing party informed of any change in his
whereabouts. This shall be done in writing and not later than
seven (7) days ...