United States District Court, S.D. Illinois
August 9, 2005.
GLENN SMITH, HERMAN RICH, and SHABAZZ MUHAMMAD, Plaintiffs,
TOM MAUE, et al., Defendants.
The opinion of the court was delivered by: CLIFFORD PROUD, Magistrate Judge
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
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
IT IS SO ORDERED.
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