Dixon v. Franklin et al

Filing 8

WRITTEN Opinion entered by the Honorable Blanche M. Manning on 6/18/2012: Plaintiff's amended complaint [ 5 ] does not comply with this Court's 2/13/12 order, is duplicative of his previous case (case no. 11 C 6860), and fails to articu late valid 42 U.S.C. § 1983 claims. The amended complaint is stricken and this case is dismissed. Plaintiff's motion to proceed in forma pauperis in this case [ 6 ] is granted and the trust fund officer at Plaintiff's place of confin ement is directed to make deductions from Plaintiff's account in accordance with this order. Plaintiff's motion for clarification [ 7 ] and any other pending motion is denied. This case is closed. (For further details see Written Opinion). Mailed notice. (et, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Blanche M. Manning

CASE NUMBER

12 C 243

CASE TITLE

Sitting Judge if Other
than Assigned Judge

DATE

June 18, 2012

Lamonte Dixon, Jr. (K-96013) vs. Johnnie Franklin, et al.

DOCKET ENTRY TEXT

Plaintiff’s amended complaint [5] does not comply with this Court’s 2/13/12 order, is duplicative of his previous case
(case no. 11 C 6860), and fails to articulate valid 42 U.S.C. § 1983 claims. The amended complaint is stricken and
this case is dismissed. Plaintiff’s motion to proceed in forma pauperis in this case [6] is granted and the trust fund
officer at Plaintiff’s place of confinement is directed to make deductions from Plaintiff’s account in accordance with
this order. Plaintiff’s motion for clarification [7] and any other pending motion is denied. This case is closed.
O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff Lamonte Dixon, a Pontiac Correctional Center inmate, has filed an amended complaint in
response to this Court’s February 13, 2012, order directing him to show cause why this case should not be
dismissed as duplicative of his previously filed case, Dixon v. Schaefer, No. 11 C 6860. Because the amended
complaint does not comply with the February 13, 2012, order, but instead, demonstrates further that these cases
involve the same events and claims, the Court dismisses this case.
Both suits involves events that occurred at Stateville Correctional Center in April 2011. According to
Plaintiff, he was upset at the lack of treatment and attention Dr. Schaefer provided for his hand during a visit in
April 2011 and thus stated to another inmate that he was going “to sue” Dr. Schaefer. Dr. Schaefer wrote out a
disciplinary report against Plaintiff stating that he had threatened that he was going “to shoot” Dr. Schaefer.
In the instant suit (12 C 243), Plaintiff alleges that Sergeant Lance Franklin escorted Plaintiff to the
hearing for the above described disciplinary report. Sergeant Franklin allegedly commented that Plaintiff did not
need to bring materials because, “you ain’t getting out of this one.” (Am. Compl. at 6.) At the hearing, Lieutenant
Johnnie Franklin read Plaintiff the charge, asked for his plea, and accepted a written statement he had prepared.
(Id. at 7.) Lieutenant Franklin then commented about Plaintiff suing Sergeant Franklin and Dr. Schaefer, and the
parties argued about whether Dr. Schaefer signed the disciplinary report. (Id.) Plaintiff was found guilty of the
charge of threatening Dr. Schaefer and was sentenced to three months segregation, three months commissary
restriction, and a demotion to C grade class. (Id.) Allegedly, Grievance Officer McGee, Stateville Warden
Hardy, Administrative Review Board Member Sherry Benton, and Illinois Department of Corrections (“IDOC”)
Director Salvador Godinez all failed to investigate Plaintiff’s grievances about alleged retaliation. (Id. at 8-9.)
In his prior case filed in October of 2011, Dixon v. Schaefer, No. 11 C 6860, Plaintiff provided more
details about Dr. Schaefer’s treatment of his hand and included a claim of deliberate indifference against Dr.
Schaefer. Plaintiff then alleged similar retaliation claims – that Dr. Schaefer’s disciplinary report against Plaintiff
was because of Plaintiff’s grievances and/or suits against Dr. Schaefer, that a witness (Officer Dangerfield) falsely
stated to the Adjustment Committee that he heard Plaintiff threaten Dr. Schaefer, and that Grievance Officer
McGee, Warden Hardy, Administrative Review Board Member Sherry Benton, and IDOC Director Salvador
Godinez failed to investigate Plaintiff’s grievances about retaliation with the April 2011 disciplinary proceedings.

12C243 Lamonte Dixon, Jr. (K-96013) vs. Johnnie Franklin, et al.

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STATEMENT
In this Court’s 2/13/12 order in this case (12 C 243), it explained that both cases involved the same
disciplinary action allegedly based upon retaliatory motives for Plaintiff having filed complaints against Dr.
Schaefer and Sergeant Franklin. The Court noted that the only difference between the suits was that case number.
12 C 243 included as Defendants Lieutenant and Sergeant Franklin, while. 11 C 6860 named Dr. Schaefer and
Officer Dangerfield, but not the Franklins. Otherwise, the cases are identical with their challenges to the
disciplinary hearing and the failure of Defendants McGee, Hardy, Benton, and Godinez to investigate Plaintiff’s
grievances about the disciplinary action. The Court thus ordered Plaintiff to show cause why this case (12 C 243)
should not be dismissed as duplicative of his prior case. Plaintiff has submitted an amended complaint repeating
his claims, but does not address how his cases differ.
Not only does the amended complaint simply repeat the claims alleged in the original complaint and not
comply with the Court’s 2/13/12 order, but it also repeats claims previously dismissed by the Court. On initial
review of Plaintiff’s case number 11 C 6860, this Court dismissed Defendants McGee, Hardy, Benton, and
Godinez, explaining that Illinois’ statutory grievance procedures at most create a procedural right, not a
substantive one, and that there is no constitutional right to have a grievance investigated, heard, or decided. See
Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996). Despite this explanation and the dismissal of these
Defendants in case number 11 C 6860, Plaintiff again named them in case number 12 C 243 (in both his original
and amended complaints). Such duplication of meritless claims after this Court’s explanation warrants dismissal.
Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003) (suits that abuse the judicial process warrant
dismissal);Holland v. City of Gary, No. 2:12-cs-62, 2012 WL 974882 at *3 (N.D. Ind. Mar. 21, 2012) (multiple
suits against the same defendants based on the same set of facts amounts to an abuse of the judicial process and
warrant dismissal).
Plaintiff’s remaining claims in this suit against the Franklins are similarly duplicative of his other case. His
claims against these Defendants stem from the same facts as his claims against Dr. Schaefer and Officer
Dangerfield and attempts to assert that all these Defendants were involved with improperly disciplining him in
April 2011 based in part on retaliatory motives. The Court stated in its 2/13/12 order its desire to have Plaintiff
bring related claims in a single suit. Plaintiff provides no reason for naming Dr. Shaefer and Officer Dangerfield
in one case and Sergeant and Lieutenant Franklin in a separate case. Splitting claims in this way, particularly
given the Court’s instruction to bring all retaliation claims in one suit, is improper.
The Court further notes that Plaintiff’s allegations against the Franklins, as currently asserted, do not state
valid retaliation claims. Not every person involved in the chain of events is necessarily liable under § 1983.
SeeBurks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (inmate was not allowed to pursue claims against each
person in the review process from the prison’s complaint examiner to the state’s superintendent and to the
governor). Plaintiff’s only allegation against Sergeant Franklin is that he escorted Plaintiff to the disciplinary
hearing and commented as Plaintiff gathered materials, “you ain’t getting out of this one.” (Amended Compl. at
6.) Plaintiff does not state that he was prevented from bringing materials to the hearing, and he in fact includes a
copy of a written statement that he submitted to the Adjustment Committee. (Id. at Exh. F.) To state a valid claim
of retaliation, Plaintiff must allege that adverse action was taken against him because of his exercise of his First
Amendment right. Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009); DeWalt v. Carter, 224 F.3d 607, 618
(7th Cir. 2000). Although the adverse action need not itself be a constitutional deprivation, there must at least be
some action. Bridges, 557 F.3d at 552; DeWalt, 224 F.3d at 618. The only action allegedly taken by Sergeant
Franklin was the comment made while Plaintiff gathered or attempted to gather materials for his hearing.
Sergeant Franklin’s comment is simply not enough to state a retaliation claim. See Crews v. City of Mt. Vernon,
567 F.3d 860, 870 (7th Cir. 2009) (a single disparaging comment does not support a retaliation claim).
As to Lieutenant Franklin, Plaintiff also does not allege a valid retaliation claim. Like the claim against
Sergeant Franklin, Plaintiff allegations seek to hold Lieutenant Franklin liable for a comment made at the
disciplinary hearing about Plaintiff’s litigious nature. (Am. Compl. at 7.) However, Plaintiff does not state that
12C243 Lamonte Dixon, Jr. (K-96013) vs. Johnnie Franklin, et al.

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STATEMENT
Lieutenant Franklin found him guilty because of his prior complaints. (Id.) Although the filing of complaints and
lawsuits as a motivating factor for disciplinary action constitutes retaliation, a claim of retaliation cannot be
established if the complained-of action would have occurred anyway. Babcock v. White, 102 F.3d 267, 275 (7th
Cir. 1996), citing Mt. Healthy City School District v. Doyle, 429 U.S. 274, 287 (1977) (retaliation does not exist if
the complained of action would have still occurred). Considering the current suit’s allegations with the allegations
in and attachments to Plaintiff’s prior complaint (11 C 6860), Plaintiff’s claims appear to be that Dr. Schaefer and
Officer Dangerfield fabricated evidence to the Adjustment Committee and that Lieutenant Franklin found Plaintiff
guilty based upon such evidence, but not because of a retaliatory motive. See (Compl. in case 11 C 6860 at 8 and
Exhs. J and K) (copies of Dr. Shaefer’s report and the Adjustment Committee disciplinary findings and ruling);
(Am. Compl. in 12 C 243 at 7.) Plaintiff’s complaints indicate a retaliation claim against Dr. Schaefer and Officer
Dangerfield for fabricating evidence, but not against Lieutenant Franklin for relying on such evidence in finding
Plaintiff guilty. Babcock, 102 F.3d at 275 (“the ultimate question [for a retaliation claim] is whether events would
have transpired differently absent the retaliatory motive”). If Plaintiff sincerely believes he has a retaliation claim
against Lieutenant Franklin, he should clearly articulate such a claim and seek to include it in an amended
complaint in case number 11 C 6860.
Accordingly, for the reasons stated above, the amended complaint in this case is dismissed as duplicative
and for failure to state a claim. Plaintiff may seek to appeal this dismissal; however, he is advised that he will be
liable for the full $455 appellate filing fee regardless of the outcome, and the dismissal of an appeal could result a
strike under 28 U.S.C. § 1915(g).
Although the instant case is dismissed, Plaintiff remains responsible for the filing fee for this case. His in
forma pauperis application indicates that he has a negative balance and cannot afford either pre-payment of the
$350 filing fee or an initial partial filing fee. Accordingly, his IFP motion is granted, the initial partial filing fee is
waived, and the trust fund officer at Plaintiff’s place of confinement shall deduct from Plaintiff's trust fund
account each month an amount equal to 20% of the preceding month's income credited to the account. Monthly
payments collected from the account shall be forwarded to the clerk of court each time the amount in the account
exceeds $10 until the full $350 filing fee is paid. All payments shall be sent to the Clerk, United States District
Court, 219 S. Dearborn St., Chicago, IL 60604, 20th floor, and shall clearly identify Plaintiff's name and the case
number of this action. Plaintiff shall remain responsible for the filing fee, and Pontiac officials shall notify
transferee authorities of any outstanding balance in the event he is transferred.

12C243 Lamonte Dixon, Jr. (K-96013) vs. Johnnie Franklin, et al.

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