Brown v. McAdory et al
Filing
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OPINION: Plaintiff's objection to the Court's December, 2011 order is construed as a motion to reconsider (d/e 12 ). The motion is granted in part and denied in part (d/e 12 ). The motion is granted to the extent Plaintiff seeks leave t o reinstate Defendants Hankins, Proctor, Jumper, and Caraway. The clerk is directed to reinstate said Defendants. The motion is otherwise denied. Plaintiff's motion to show cause is denied (d/e 15 ). Defendant Kerr is dismissed without prejud ice. The claim regarding Kerr's alleged refusal to allow Plaintiff to use the restroom is dismissed without prejudice. The Clerk is directed to attempt service of the Complaint and this order on each Defendant pursuant to this District's i nternal procedures for Rushville cases. This cause is set for further scheduling procedures under Fed. R. Civ. P. 16 on June 18, 2012 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. See written Opinion. Entered by Judge Sue E. Myerscough on 4/16/2012. (MJ, ilcd)
E-FILED
Monday, 16 April, 2012 03:37:44 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
BOBBY BROWN,
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Plaintiff,
v.
EUGENE MCADORY et al.,
Defendants.
11-CV-3195
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
On December 2, 2011 the Court entered an order defining the
claims in this case and concluding that those claims were improperly
joined in one action. Plaintiff was directed to inform the Court which
claim he wished to pursue in this case. He was also directed to file a
motion to sever if he wished to proceed with the unrelated claim by
opening another case and posting an additional bond of $100.
Plaintiff responded by filing an objection, which the Court
construes as a motion for reconsideration. Plaintiff asserts that
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Defendant Kerr retaliated against him by filing a disciplinary ticket
against Plaintiff because Defendant Kerr was unsatisfied with the
discipline Plaintiff had already received for the incident. This does not
state a retaliation claim because the basis for the retaliation was
Plaintiff’s perceived lenient punishment, not the exercise of any First
Amendment right by Plaintiff.
Plaintiff seems to assert in his objections that he does not intend to
pursue a claim against Kerr for Kerr’s refusal to allow Plaintiff to use the
restroom. Accordingly, this claim will be dismissed along with
Defendant Kerr, and no additional bond will be imposed.
Plaintiff also objects to the dismissal of the other Defendants. As
the Court explained, administrators are not liable for their subordinates’
constitutional violations solely because those administrators are in
charge. See Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir.
2001)(no respondeat superior liability under § 1983). Additionally, an
individual is not personally responsible for a constitutional violation
caused by someone else solely because that individual rules against a
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plaintiff in grievances about the incident. George v. Smith, 507 F.3d
605, 609-10 (7th Cir. 2007) (“Only persons who cause or participate in
the violations are responsible. Ruling against a prisoner on an
administrative complaint does not cause or contribute to the violation.”).
Plaintiff asserts in his objections that his conditions in segregation
on two occasions involved 30-day deprivations of hygiene necessities, a
mattress, cover, and clothing. The Court has already determined that
this states a potential claim against Defendants McAdory, Williams, and
Parson. Plaintiff contends that Defendants Hankins, Proctor, Jumper,
and Caraway knew that Plaintiff was without any of his “property” while
in segregation. Plaintiff may be asserting that Defendants Hankins,
Proctor, Jumper, and Caraway knew that Plaintiff was without clothing,
a mattress, and hygiene necessities for 30 days and had the authority to
do something about it. Accordingly, Plaintiff’s motion will be granted to
the extent he seeks to reinstate these four Defendants.
IT IS THEREFORE ORDERED:
1) Plaintiff’s objection to the Court’s December, 2011 order is
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construed as a motion to reconsider (d/e 12). The motion is granted in
part and denied in part (d/e 12). The motion is granted to the extent
Plaintiff seeks leave to reinstate Defendants Hankins, Proctor, Jumper,
and Caraway. The clerk is directed to reinstate said Defendants. The
motion is otherwise denied.
2) Plaintiff’s motion to show cause is denied (d/e 15).
3) Defendant Kerr is dismissed without prejudice. The claim
regarding Kerr’s alleged refusal to allow Plaintiff to use the restroom is
dismissed without prejudice.
4) The Clerk is directed to attempt service of the Complaint and
this order on each Defendant pursuant to this District's internal
procedures for Rushville cases.
5) 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).
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6) With respect to a Defendant who no longer works at the address
provided by Plaintiff, the entity for whom that Defendant worked while
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 effectuating 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.
7) 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.
8) 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
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with the Clerk or that fails to include a required certificate of service will
be stricken by the Court.
9) 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.
10) This cause is set for further scheduling procedures under Fed.
R. Civ. P. 16 on June 18, 2012 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 Clerk is directed to give Plaintiff’s place of confinement
notice of the date and time of the conference, and to issue the
appropriate process to secure the Plaintiff’s presence at the conference.
11) Counsel for Defendants is hereby granted leave to depose
Plaintiff at their place of confinement. Counsel for Defendants shall
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arrange the time for the depositions.
12) Plaintiff shall immediately notify the court of any change in
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.
13) The Clerk is directed to notify the parties of their option to
consent to disposition of this case before a United States Magistrate
Judge by providing Plaintiff with a magistrate consent form. Upon
receipt of a signed consent from Plaintiff, the Clerk shall forward the
consent to Defendants for consideration.
ENTERED: April 16, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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