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Holloway v. Baker

November 19, 2008

EVERETT HOLLOWAY, PLAINTIFF,
v.
JOHN F. BAKER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sam A. Crow U. S. Senior District Judge

ORDER

On October 31, 2008, this court entered an Order herein assessing an initial partial filing fee and requiring that plaintiff file a supplement to his complaint for reasons stated in the Order. Plaintiff has complied with that Order. Having considered the Supplement filed by plaintiff, the court finds as follows.

Plaintiff acknowledges that he cannot provide sufficient information to serve and proceed against the two John Doe defendants at this time. Accordingly, the court finds that these defendants should be dismissed from this action, without prejudice. If plaintiff acquires sufficient information to name additional defendants herein, he may file a motion to add defendants. However, that motion must be timely and otherwise in compliance with the Federal Rules of Civil Procedure. Plaintiff's claim of conspiracy is also dismissed without prejudice, given that plaintiff has not provided facts in support of this claim. This action proceeds only upon plaintiff's remaining claims and only against defendant Baker.

Within his Supplement, plaintiff asks the court to reconsider his motion for appointment of counsel. The court has considered this request, and finds it should be denied for the reasons already stated. Plaintiff is required to present the facts underlying his claims, and not to provide legal authority. In the future, plaintiff must file a separate motion with the case caption and the title of the motion at the top of the first page, whenever he seeks action in this case such as appointment of counsel.

The court finds that proper processing of plaintiff's claims cannot be achieved without additional information from appropriate officials of the Winfield Correctional Facility. See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see also Hall v. Bellmon, 935 F.2d 1106 (10th Cir. 1991).

IT IS THEREFORE ORDERED that plaintiff's Motion for Leave to Proceed in forma pauperis (Doc. 2) is granted*fn1 .

IT IS FURTHER ORDERED that defendants John Doe I and John Doe II are dismissed from this action, without prejudice; and plaintiff's conspiracy claim is dismissed, without prejudice.

IT IS FURTHER ORDERED:

(1) The clerk of the court shall prepare waiver of service forms pursuant to Rule 4(d) of the Federal Rules of Procedure, to be served upon defendant by a United States Marshal or a Deputy Marshal at no cost to plaintiff absent a finding by the court that plaintiff is able to pay such costs. The report required herein, shall be filed no later than sixty (60) days from the date of this order, and the answer shall be filed within twenty (20) days following the receipt of that report by counsel for defendant.

(2) Officials responsible for the operation of Winfield Correctional Facility are directed to undertake a review of the subject matter of the complaint:

(a) to ascertain the facts and circumstances;

(b) to consider whether any action can and should be taken by the institution to resolve the subject matter of the complaint;

(C) to determine whether other like complaints, whether pending in this court or elsewhere, are related to this complaint and should be considered together.

(3) Upon completion of the review, a written report shall be compiled which shall be attached to and filed with the defendant's answer or response to the complaint. Statements of all witnesses shall be in affidavit form. Copies of pertinent rules, regulations, official documents and, wherever appropriate, the reports of medical or psychiatric examinations shall be included in ...


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