United States District Court, S.D. Illinois
May 19, 2005.
KEON ROSE, Plaintiff,
DONALD N. SNYDER, JR., JONATHAN R. WALLS, TOM MAUE, STEPHEN L. JINES, BILLY J. CONWAY, C. HOSKIN, MARK S. COLVIS, ROBERT J. SIZEMORE, JEFFREY A. JAENKE, DOUGLAS W. CAMPBELL, MINH T. SCOTT, KAY A. SURMAN, ANDREW WILSON, ROBERT A. BIGAS, MAVIS GROSS, DONNA EBERS, JAMISON L. FRAZIER, and WILLIAM SPILLER, Defendants.
The opinion of the court was delivered by: DAVID HERNDON, District Judge
MEMORANDUM AND ORDER
Plaintiff, currently an inmate in the Stateville Correctional
Center, brings this action for deprivations of his constitutional
rights pursuant to 42 U.S.C. § 1983. Plaintiff previously was
granted leave to proceed in forma pauperis, and he has tendered
his initial partial filing fee as ordered.
At the outset, the Court will address three pending motions.
First is Plaintiff's motion for a status hearing (Doc. 8), but a
hearing is not yet warranted in this action. Therefore, this
motion is DENIED.
Second is Plaintiff's motion for default judgment (Doc. 10).
However, as Defendants have not yet been served in this action, a default judgment is not
warranted, and this motion is also DENIED.
Third is Plaintiff's motion for appointment of counsel (Doc.
9). There are five factors which a district court should consider
in ruling on a request to appoint counsel. Those factors are (1)
whether the merits of the claim are colorable; (2) the ability of
the indigent to investigate crucial facts; (3) whether the nature
of the evidence indicates that the truth will more likely be
exposed where both sides are represented by counsel; (4)
capability of the indigent to present the case; and (5) the
complexity of the legal issues raised by the Complaint. See
Merritt v. Faulkner, 697 F.2d 761 (7th Cir. 1983), cert.
denied, 464 U.S. 986 (1983); McKeever v. Israel, 689 F.2d 1315
(7th Cir. 1982); Maclin v. Freake, 650 F.2d 885 (7th
Cir. 1981); Wilson v. Duckworth, 716 F.2d 415 (7th Cir.
When deciding whether to appoint counsel, the Court must first
determine if a pro se litigant has made reasonable efforts to
secure counsel before resorting to the courts. Jackson v. County
of McLean, 953 F.2d 1070, 1072 (7th Cir. 1992). Plaintiff
makes no showing that he has attempted to retain counsel.
Therefore, the Court finds that appointment of counsel is not
warranted, and the motion for appointment of counsel is DENIED.
This case is now before the Court for a preliminary review of
the amended complaint (Doc. 7) pursuant to 28 U.S.C. § 1915A,
(a) Screening. The court shall review, before
docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil
action in which a prisoner seeks redress from a
governmental entity or officer or employee of a
(b) Grounds for Dismissal. On review, the court
shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the
complaint (1) is frivolous, malicious, or fails to state a
claim on which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks
an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319
, 325 (1989). Upon careful review of the
amended complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; portions of
this action are frivolous and thus subject to summary dismissal.
In this action, Plaintiff claims that he has been subjected to
religious persecution by I.D.O.C. employees at Menard, at the
direction of Defendants Snyder, Maue, Spiller and Walls.
Plaintiff states that he is a practitioner of the Rastafarian
faith.*fn1 As part of his religious observance, Plaintiff
wears his hair in dreadlocks. According to a Department
memorandum from Defendant Maue dated September 1, 2000 (attached
as an exhibit to the amended complaint), "at no time will
Disciplinary Segregation status inmates be permitted outside
their cells without the removal of their hair braids or
dreadlocks." For reasons apparently irrelevant to this action,
Plaintiff was confined to the disciplinary segregation unit at
Menard, beginning in early 2002. Because he refused to remove, or
undo, his dreadlocks in compliance with Department policy, he
received a series of disciplinary tickets from Jines, Conway, Hoskin, Sizemore, Colvis, Jaenke,
Campbell, Frazier, Hood and Spiller.*fn2 Ironically, each of
these tickets resulted in more time spent in disciplinary
segregation, perhaps creating an unending cycle.
It is well-established that "a prisoner is entitled to practice
his religion insofar as doing so does not unduly burden the
administration of the prison." Hunafa v. Murphy, 907 F.2d 46,
47 (7th Cir. 1990); see Al-Alamin v. Gramley, 926 F.2d 680,
686 and nn. 3-5 (7th Cir. 1991) (collecting cases). On the
other hand, a prison regulation that impinges on an inmate's
First Amendment rights is nevertheless valid "if it is reasonably
related to legitimate penological interests." O'Lone v. Estate
of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v.
Safley, 482 U.S. 78, 89 (1987)). Such interests include inmate
security and the proper allocation of limited prison resources.
See id. at 348, 352-53; Turner, 482 U.S. at 90; Al-Alamin,
926 F.2d at 686.
Plaintiff argues that the policy is question is not reasonably
related to security issues, as there are other, less restrictive
ways in which an inmate with dreadlocks can be searched for
contraband. At this point in the litigation, the Court cannot
make a determination as to the validity of Plaintiff's argument.
Therefore, at this time, the Court is unable to dismiss the
claims against Snyder, Maue, Spiller, Walls, Jines, Conway,
Hoskin, Sizemore, Colvis, Jaenke, Campbell, and Frazier. See
28 U.S.C. § 1915A.
On the other hand, Plaintiff lists Minh T. Scott, Kay A.
Surman, Andrew Wilson, Robert A. Bigas, Mavis Gross and Donna
Ebers as defendants in the caption of his amended complaint, but
the statement of claim does not include any allegations against
these defendants. "A plaintiff cannot state a claim against a
defendant by including the defendant's name in the caption."
Collins v. Kibort,143 F.3d 331, 334 (7th Cir. 1998). Therefore, these
Defendants are dismissed from this action with prejudice.
IT IS HEREBY ORDERED that Defendants SCOTT, SURMAN, WILSON,
BIGAS, GROSS and EBERS are DISMISSED from this action with
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 SNYDER, MAUE, SPILLER,
WALLS, JINES, CONWAY, HOSKIN, SIZEMORE, COLVIS, JAENKE, CAMPBELL
and FRAZIER. 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 SNYDER, MAUE, SPILLER, WALLS, JINES, CONWAY,
HOSKIN, SIZEMORE, COLVIS, JAENKE, CAMPBELL and FRAZIER in the
manner specified by Rule 4(d)(2) of the Federal Rules of Civil
Procedure. Process in this case shall consist of the complaint,
applicable forms 1A and 1B, and this Memorandum and Order. 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.
With respect to former employees of Illinois Department of
Corrections who no longer can be found at the work address
provided by Plaintiff, the Department of Corrections 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 I.D.O.C. pursuant to this order
shall not be maintained in the court file, nor disclosed by the
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 and a copy of this Order
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 defendant 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 after a transfer or other change in address
IT IS SO ORDERED.