Free Memorandum and Order - District Court of Delaware - Delaware

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Date: March 31, 2006
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State: Delaware
Category: District Court of Delaware
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Case 1 :05-cv-00033-Gl\/IS Document 6-2 Filed 03/31 /2006 Page 1 of 3
Plaintiff, g
v. g Civ. No. 05-033-GMS
Defendants. g
At Wilmington this day of March, 2006, for the reasons set forth in the
Memorandum issued this date,
l. The claims against claims against Deputy Warden Burris and the Department of
Correction (Delaware Correctional Center) are DISMISSED without prejudice pursuant to 28
U.S.C. § l9l5(e)(2)(B) and§ l9l5A(b)(l).
2. The court has identified cognizable retaliation claims against Warden Thomas
Carroll, Captain Joseph Ballinger, Jim Simms, Evelyn Stevenson, and Jane/John Does l, 2, 3,
and 4. Grosvenor may proceed with those claims.
3. Jim Simms and Evelyn Stevenson shall identify the Jane/John Doe members of
the Multi-Disciplinary Team and the J ane/John Doe members of the Institutional Base
Classification Committee, as soon as possible after the complaint is served.
4. Grosvenor shall immediately move the court for an order directing amendment of
the caption and service of the complaint upon learning the identification of the J ane/John Doe

Case 1:O5—cv-00033-Gl\/IS Document 6-2 Filed O3/31/2006 Page 2 of 3
1. The clerk of the court shall cause a copy of this order to be mailed to the plaintiff.
2. Pursuant to Fed. R. Civ. P. 4(c)(2) and (d)(2), the plaintiff shall complete and
return to the Clerk of the Court an original "U.S. Marshal—285" form for the defendants
Warden Thomas L. Carroll, Captain Joseph Ballinger, Jim Simms, and Evelyn Stevenson
as well as for the Attorney General of the State of Delaware, 820 N. FRENCH STREET,
WILMINGTON, DELAWARE, 19801, pursuant to DEL. CODE ANN. tit. 10 § 3103(C).
Additionally, the plaintiff shall provided the court with one copy of the complaint (D.I. 2)
for service upon the defendants Warden Thomas L. Carroll, Captain Joseph Ballinger, Jim
Simms, and Evelyn Stevenson. The plaintiff is notified that the United States Marshal will
not serve the complaint until all "U.S. Marshal 285" forms have been received by the clerk
of the court. Failure to provide the "U.S. Marshal 285" forms for the defendant(s) and the
attorney general within 120 days from the date of this order may result in the complaint
being dismissed or defendant(s) being dismissed pursuant to Federal Rule of Civil
Procedure 4(m).
3. Upon receipt of the form(s) required by paragraph 2 above, the United States
Marshal shall forthwith sewe a copy of the complaint this order, a "Notice of Lawsuit" form, the
filing fee order(s), and a "Retum of Waiver" form upon the defendant(s) identified in the 285
4. Within thirty (30) days from the date that the "Notice of Lawsuit" and "Return of J
Waiver" forms are sent, if an executed "Waiver of Service of Summons" form has not been
received from a defendant, the United States Marshal shall personally serve said defendant(s)

Case 1:O5—cv-00033-Gl\/IS Document 6-2 Filed O3/31/2006 Page 3 of 3
pursuant to Fed. R. Civ. P. 4(c)(2) and said defendant(s) shall be required to bear the cost related
to such service, unless good cause is shown for failure to sign and return the waiver.
5. Pursuant to Fed. R. Civ. P. 4(d)(3), a defendant who, before being served with
process timely returns a waiver as requested, is required to answer or otherwise respond to the
complaint within sixty (60) days from the date upon which the complaint, this order, the "Notice
of Lawsuit" form, and the "Retum of Waiver" fonn are sent. lf a defendant responds by way of a
motion, said motion shall be accompanied by a brief or a memorandum of points and authorities
and any supporting affidavits.
6. No communication, including pleadings, briefs, statement of position, etc., will be
considered by the court in this civil action unless the documents reflect proof of service upon the
parties or their counsel.
7. NOTE: *** \lVhen an amended complaint is filed prior to service, the court will
VACATE all previous service orders entered, and service will not take place. An amended
complaint filed prior to service shall be subject to re-screening pursuant to 28 U.S.C. §l9l5(e)(2)
and § l9l5A(a). ***
8. NOTE: *** Discovery motions and motions for appointment of counsel filed prior
to service will be dismissed without prejudice, with leave to refile following service. ***