Jackson v. Pierce et al

Filing 12

OPINION (See Written Opinion): 1) Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the Court finds that Plaintiff states the following Page 3 of 6 constitutional claims: 1) First Amendment retaliation claim against Defe ndants Fitzgerald and Pierman for allegedly retaliating against Plaintiff for Plaintiff's grievances; and, 2) a Fourteenth Amendment equal protection claim against Defendant Fitzgerald for allegedly not allowing black inmates to bring books to o r talk in the prison health care unit while allowing white and Hispanic inmates to do so. This case proceeds solely on the claims identified in this paragraph. Any additional claims shall not be included in the case, except at the Court's discre tion on motion by a party for good cause shown or pursuant to Federal Rule of Civil Procedure 15. 2) Defendant Pierce is dismissed, without prejudice, for failure to state a claim against him. This cause is set for further scheduling procedures unde r Fed. R. Civ. P. 16 on July 1, 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 telephone conference. The conference will be cancelled if service has been accomplished and no pending issues need discussion. Accordingly, no writ shall issue for Plaintiff's presence unless directed by the Court. Entered by Judge Sue E. Myerscough on 4/24/2013. (VM, ilcd)

E-FILED

Wednesday, 24 April, 2013 11:18:56 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
SAMUEL JACKSON,
Plaintiff,
v.
WARDEN GUY PIERCE,
CORRECTIONAL OFFICER
JAMES FITZGERALD, and
NURSE SUSAN K. PIERMAN
Defendants.

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13-CV-3067

OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Plaintiff, incarcerated and proceeding pro se, seeks leave to
proceed in forma pauperis. The case is before the Court for a merit
review pursuant to 28 U.S.C. § 1915A.
After reviewing Plaintiff's Complaint and exhibits, the Court
concludes that Plaintiff states an arguable First Amendment claim
that Defendants Fitzgerald and Pierman retaliated against Plaintiff
for Plaintiff's grievances against them. According to Plaintiff, this
retaliation took the form of depriving Plaintiff of sanitary conditions
in which to take his daily insulin shot and false disciplinary tickets
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against Plaintiff. Plaintiff has since been transferred to a different
correctional center.
Plaintiff also states an arguable equal protection claim against
Defendant Fitzgerald. Plaintiff alleges that Fitzgerald refused to
allow black inmates to talk or bring books to the health care unit,
while allowing white and hispanic inmates to do so.
However, Plaintiff states no plausible claim against Warden
Pierce. Warden Pierce cannot be held liable for his employees'
constitutional violations solely because Warden Pierce is in charge.
Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001)(no
respondeat superior liability under § 1983). Warden Pierce can only
be liable if he directed, participated in, personally approved of, or
turned a blind eye to the constitutional violations. Matthews v. City
of East St. Louis, 675 F.3d 703, 708 (7th Cir. 2012)(“To show
personal involvement, the supervisor must ‘know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye for fear of
what they might see.’”)(quoted cite omitted).
IT IS THEREFORE ORDERED:
1)

Pursuant to its merit review of the Complaint under 28

U.S.C. § 1915A, the Court finds that Plaintiff states the following
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constitutional claims: 1) First Amendment retaliation claim against
Defendants Fitzgerald and Pierman for allegedly retaliating against
Plaintiff for Plaintiff's grievances; and, 2) a Fourteenth Amendment
equal protection claim against Defendant Fitzgerald for allegedly not
allowing black inmates to bring books to or talk in the prison health
care unit while allowing white and Hispanic inmates to do so. This
case proceeds solely on the claims identified in this paragraph.
Any additional claims shall not be included in the case, except at
the Court’s discretion on motion by a party for good cause shown or
pursuant to Federal Rule of Civil Procedure 15.
2)

Defendant Pierce is dismissed, without prejudice, for

failure to state a claim against him.
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 through the U.S.
Marshal’s 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
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worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
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.
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 the 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 shall be stricken by the Court.
7)

Once counsel has appeared for a Defendant, Plaintiff

need not send copies of his filings to that Defendant or to that
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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 July 1, 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 telephone conference. The conference will be
cancelled if service has been accomplished and no pending issues
need discussion. Accordingly, no writ shall issue for Plaintiff’s
presence unless directed by the Court.
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 deposition.
10)

Plaintiff shall immediately notify the Court, in writing, of

any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing address

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or phone number will result in dismissal of this lawsuit, with
prejudice.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO
send to each Defendant pursuant to this District's internal
procedures: 1) a Notice of Lawsuit and Request for Waiver of
Service; 2) a Waiver of Service; 3) a copy of the Complaint; and 4)
this order.
ENTERED: April 24, 2013
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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