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SMITH v. MAUE

United States District Court, S.D. Illinois


August 9, 2005.

GLENN SMITH, HERMAN RICH, and SHABAZZ MUHAMMAD, Plaintiffs,
v.
TOM MAUE, et al., Defendants.

The opinion of the court was delivered by: CLIFFORD PROUD, Magistrate Judge

ORDER

Before the Court is plaintiff Herman Rich's "Motion for Sanctions." (Doc. 51). Plaintiff correctly notes that there is no indication in the record that Health Professionals, Ltd. ever responded to the Court's December 14, 2004, order (Doc. 46) requesting the last known address of defendants Dr. Rice and Dr. Doughty. Plaintiff also seeks sanctions against the Illinois Department of Corrections (which he perceives to be Dr. Rice and Dr. Doughty's employer) and the defendants for evading service. In a footnote, plaintiff also requests entry of default, presumably as to Dr. Rice, who has yet to enter the case.

As a preliminary matter, the Court notes that plaintiff's motion is moot with respect to Dr. Doughty, who has entered his appearance in this case.

  The Court has confirmed with the U.S. Marshal's Service that Health Care Professionals complied with the Court's order by providing the requested address information. Therefore, there is no basis for sanctioning Health Care Professionals. A request for waiver of summons and complaint form was not sent to Dr. Rice due to a clerical error in the Marshal's Office. That error has now been remedied.

  Default cannot be entered against a defendant who has yet to be served with summons and the complaint. See Fed.R.Civ.P. 4, 5 and 55. Therefore, plaintiff's motion is moot with respect to Dr. Rice.

  All of the information before the Court indicates that Dr. Rice is not employed by the Illinois Department of Corrections. Therefore, there is no basis for sanctioning the Department for not accepting service on Dr. Rice's behalf. There is also no cause for sanctioning any of the defendants. It is not their job to effect service upon Dr. Rice, and there is no evidence that they have done anything to impede efforts to locate Dr. Rice.

  IT IS THEREFORE ORDERED that, for the aforementioned reasons plaintiff's "motion for sanctions" (Doc. 51) is DENIED in all respects.

  IT IS SO ORDERED.

20050809

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