Mixon v. Coleman et al

Filing 8

MERIT REVIEW ORDER entered by Judge James E. Shadid on 11/18/2021. IT IS THEREFORE ORDERED this case is dismissed in its entirety without prejudice for failure to exhaust administrative remedies as required pursuant to 42 U.S.C. §1997e(a). SEE FULL WRITTEN ORDER.(SAG)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
LESTER MIXON,
Plaintiff,

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vs.
PETER COLEMAN, et. al.,
Defendants

Case No. 21-4137

MERIT REVIEW ORDER
JAMES E. SHADID, U.S. District Judge:
This cause is before the Court for merit review of the Plaintiff’s complaint. The
Court is required by 28 U.S.C. §1915A to “screen” the Plaintiff’s complaint, and through
such process to identify and dismiss any legally insufficient claim, or the entire action if
warranted. A claim is legally insufficient if it “(1) is frivolous, malicious, or fails to state
a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant
who is immune from such relief.” 28 U.S.C. §1915A.
Plaintiff, a pro se prisoner, claims eight Defendants violated his constitutional
rights at the Knox County Jail including Inmate P.C., Sheriff Dave Clague, Jail
Administrator Louie Gossip, Chief Brad Abernathy, Sergeant Dawn Dennies, Officer
Wheeling, Officer McNabb, and Officer Countryman.1

Plaintiff initially indicates he is bringing his lawsuit pursuant to “[o]ther federal law” but lists what
appears to be case numbers from his previous lawsuits. (Comp., p. 1). Later in his compliant, Plaintiff
refers to a violation of his Fourteenth Amendment rights. (Comp., p. 8).
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E-FILED

Thursday, 18 November, 2021 04:09:17 PM
Clerk, U.S. District Court, ILCD

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Plaintiff complains the Defendants placed in a cell with a “known homosexual ”
and he believes this action was in retaliation for his previous lawsuits. (Comp., p. 5).
Plaintiff also alleges he observed the inmate masturbating and hit the emergency button
to notify officers. Plaintiff was then moved to another cell.
There are several problems with Plaintiff’s complaint. Plaintiff has not
articulated a constitutional violation simply because he was placed in a cell with an
inmate he believes was homosexual. In addition, as soon as Plaintiff notified officers of
his complaints with his cellmate’s behavior, Plaintiff was moved to another cell.
Plaintiff has also failed to articulate a claim against his cellmate, and Plaintiff
cannot sue another inmate pursuant to §1983 because the inmate is not a state actor. See
i.e. Fisher v. LaPorte County Jail, 2010 WL 148316 at 3 (N.D.Ind. Jan. 11, 2010).
At most, Plaintiff may have articulated a retaliation claim, but he has failed to
identify any lawsuit which he believes prompted the retaliatory behavior.
More important, Plaintiff clearly has not exhausted his administrative remedies
as required before filing his lawsuit. See 42 U.S.C. §1997e(a). Failure to exhaust
administrative remedies is an affirmative defense. See Turley v. Rednour, 729 F.3d 645,
650 (7th Cir. 2013). Therefore, the Court typically must wait for a Defendant to raise the
issue. However, the Court may invoke an affirmative defense on behalf of an un-served
defendant if it is clear from the face of the complaint that the defense applies. Walker v.
Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); Gleash v. Yuswak, 308 F.3d 758, 760 (7th
Cir. 2002). The defense must be both apparent and unmistakable. See Walker v.
Thompson, 288 F.3d 1005, 1010 (7th Cir. 2002)
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In this case, Plaintiff says he was first placed in the cell on August 1, 2021 and
moved after he pushed the emergency button on August 20, 2021. (Comp., p. 5).
Plaintiff signed his complaint on August 20, 2021 and it was received on August 23,
2021. Plaintiff did not have time to complete the grievance process before initiating this
lawsuit. If there were any doubt remaining, Plaintiff has checked the box on the
complaint form indicating he has not filed a grievance and admits “I haven’t had a
chance to do so.” (Comp., p. 4). Therefore, the Court must dismiss this lawsuit for
failure to exhaust administrative remedies.
IT IS THEREFORE ORDERED this case is dismissed in its entirety without
prejudice for failure to exhaust administrative remedies as required pursuant to 42
U.S.C. §1997e(a).
ENTERED this 18th day of November, 2021.

s/James E. Shadid
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JAMES E. SHADID
UNITED STATES DISTRICT JUDGE

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