Gregory v. Kirby et al, No. 3:2012cv03249 - Document 5 (C.D. Ill. 2012)

Court Description: OPINION entered by Judge Sue E. Myerscough on 12/13/2012. This case proceeds solely on Plaintiff's constitutional excessive force claim against Defendant Carey. All Defendants besides Carey and Plaintiff's other claims are dismissed witho ut prejudice as improperly joined. The clerk is directed to terminate Defendants Kirby, Berola, Bouvet, Doetsch, Beal and Ferro. This cause is set for further scheduling procedures under Fed. R. Civ. P. 16 on February 11, 2013 at 1:30 p.m. (or as soon as the Court can reach the case) before Judge Sue E. Myerscough by video conference. (MAS, ilcd)

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E-FILED Thursday, 13 December, 2012 04:52:45 PM Clerk, U.S. District Court, ILCD UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF ILLINOIS SPRINGFIELD DIVISION JAMES GREGORY, ) ) ) ) ) ) ) ) Plaintiff, v. JOHN KIRBY, ROBERT BEIERMAN, ROBERT BEROLA, GUY BOUVET, BRIAN CAREY, ) CHRIS DOETSCH, MICHAEL HERDT, ANGELA BEAL, and BRENT FERRO, 12-CV-3249 ) ) ) ) ) Defendants. OPINION SUE E. MYERSCOUGH, U.S. District Judge: Plaintiff, proceeding pro se and incarcerated in the Sangamon County Jail ( Jail ), pursues claims arising from various incidents at the Jail. On October 23, 2012, Plaintiff was directed to file a motion to sever if he wished to pursue claims other than the excessive force claim against Defendant Carey. Plaintiff has not filed a motion to sever. Accordingly, the improperly joined claims will be dismissed and this case will proceed 1 on the excessive force claim against Defendant Carey. IT IS THEREFORE ORDERED: 1) This case proceeds solely on Plaintiff s constitutional excessive force claim against Defendant Carey. All Defendants besides Carey and Plaintiff s other claims are dismissed without prejudice as improperly joined. The clerk is directed to terminate Defendants Kirby, Berola, Bouvet, Doetsch, Beal, and Ferro. 2) The Clerk is directed to attempt service of the Complaint and this order on Defendant Carey pursuant to this District's internal procedures. 3) If a Defendant fails to sign and return a Waiver of Service to the Clerk within 30 days after the Waiver is sent, the Court will take appropriate steps to effect formal service on that Defendant and will require that Defendant to pay the full costs of formal service pursuant to Federal Rule of Civil Procedure 4(d)(2). 4) With respect to a Defendant who no longer works at the address provided by Plaintiff, the entity for whom that Defendant worked while 2 at that address shall provide to the Clerk that Defendant's current work address, or, if not known, that Defendant's forwarding address. This information shall be used only for effecting service. Documentation of forwarding addresses shall be retained only by the Clerk and shall not be maintained in the public docket nor disclosed by the Clerk. 5) Defendants shall file an answer within the time prescribed by Local Rule. A motion to dismiss is not an answer. The answer should include all defenses appropriate under the Federal Rules. The answer and subsequent pleadings shall be to the issues and claims stated in this Opinion. 6) Plaintiff shall serve upon any Defendant who has been served but who is not represented by counsel a copy of every filing submitted by Plaintiff for consideration by the Court, and shall also file a certificate of service stating the date on which said copy was mailed. Any paper received by a District Judge or Magistrate Judge that has not been filed with the Clerk or that fails to include a required certificate of service will be stricken by the Court. 3 7) Once counsel has appeared for a Defendant, Plaintiff need not send copies of his filings to that Defendant or to that Defendant's counsel. Instead, the Clerk will file Plaintiff's document electronically and send a notice of electronic filing to defense counsel. The notice of electronic filing shall constitute service on Defendants pursuant to Local Rule 5.3. If electronic service on Defendants is not available, Plaintiff will be notified and instructed accordingly. 8) This cause is set for further scheduling procedures under Fed. R. Civ. P. 16 on February 11, 2013 at 1:30 p.m. (or as soon as the Court can reach the case) before U. S. District Judge Sue E. Myerscough by video conference. The conference will be scheduled if all Defendants have been served. Accordingly, no writ shall issue until further Court order. 9) Counsel for Defendants is hereby granted leave to depose Plaintiff at his place of confinement. Counsel for Defendants shall arrange the time for the depositions. 10) Plaintiff shall immediately notify the court of any change in 4 their mailing addresses and telephone numbers. Failure to notify the Court of a change in mailing address or phone number will result in dismissal of this lawsuit, with prejudice. ENTERED: December 13, 2012 FOR THE COURT: s/Sue E. Myerscough SUE E. MYERSCOUGH UNITED STATES DISTRICT JUDGE 5

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