Harris v. Hodge et al

Filing 156

MEMORANDUM AND ORDER, The Court hereby ADOPTS the Report and Recommendation (Doc. 152 ) in its entirety and the Plaintiff is allowed to proceed on the four counts described in the order. The parties are DIRECTED to refer to these counts in all future filings. Defendants are GRANTED to 30 days from the date of this order to file an answer. Magistrate Judge Frazier is DIRECTED to enter a new scheduling order in this matter. Signed by Judge J. Phil Gilbert on 2/8/2016. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LARRY G. HARRIS,
Plaintiff,
vs.
WARDEN HODGE, et al.,
Defendants.

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Case No. 11-cv-00973-JPG-PMF

MEMORANDUM AND ORDER
This matter comes before the court on the Report and Recommendation (“R & R”) (Doc.
152) of Magistrate Judge Philip M. Frazier with regard to Plaintiff’s Second Amended
Complaint (Doc. 92). Defendants filed a timely objection to the R & R.
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are
made. The Court has discretion to conduct a new hearing and may consider the record before the
magistrate judge anew or receive any further evidence deemed necessary. Id. “If no objection or
only partial objection is made, the district court judge reviews those unobjected portions for clear
error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). The Court has received
an objection from the defendants and will review de novo those portions of the report.
Under § 1915A, the Court is required to conduct a prompt threshold review of a
complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant. The review of
Plaintiff’s initial complaint (Doc. 8) indicated that the Plaintiff had articulated a colorable federal
cause of action and he was permitted to proceed on the following claims:
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Count 1:

A claim against defendants McCormick, Carter, Johnson, [for the cell

shakedown] and Downen [for placing plaintiff in back of the meal line] for retaliation
against the plaintiff for the exercise of his constitutionally protected right to file
grievances.
Count 2:

A claim against defendants Hodge, Storm, Downen, and Sims for failing

to allow the plaintiff adequate time to eat his meals, amounting to cruel and unusual
punishment in violation of the 8th Amendment.
However, the review dismissed with prejudice defendants Hodge, Storm, Adams, Tanner,
Brake, Rousch, Rucker, Marshoff, and Ausbrook. Defendants Hodge and Storm were later
reinstated in this action (Doc. 22) and the First Amended Complaint (Doc.47) re-added
defendants Adams, Tanner, McCormick, Brake, Rousch, Rucker, Marshoff, Ausbrook, and
Carter to Count 2. Plaintiff was again granted leave to amend and filed a Second Amended
Complaint (Doc. 92).
The R & R states that the Plaintiff’s Second Amended Complaint did not add any
additional defendants, but alleges two additional claims as follows:
Count 3:

A claim against defendants Hodge and Storm for retaliation by turning a

blind eye/refusing to correct the conduct of various correctional officers who were
denying Plaintiff adequate time to eat his meals in retaliation for Plaintiff’s previous
lawsuits in violation of the 1st Amendment.
Count 4:

A claim against defendants Hodge and Storm for retaliation in that they

transferred Plaintiff from Lawrence Correctional Center (a medium security prison) to
Menard Correctional Center (a maximum security prison) in retaliation for Plaintiff’s
previous lawsuits in violation of the 1st Amendment.

Defendants object to that portion of the R & R pertaining to Count 3. Defendants argue
that the Plaintiff has not plead sufficient factual content to allow the Court to draw a reasonable

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inference that the defendants are liable for the misconduct alleged in that the allegations fail to
identify what “retaliatory acts” Plaintiff suffered with regard to defendants Hodge and Storm.
Pleading a First Amendment cause of action is not difficult under federal notice pleading
standards. For example, in order to state a First Amendment claim for retaliation, a plaintiff
need only allege that he engaged in activity protected by the First Amendment and that the
defendant’s actions were motivated by that protected activity. See Higgs v. Carver, 286 F.3d
437, 439 (7th Cir. 2002); see also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S.
274, 287 (1977). If a plaintiff makes such allegations, his complaint will withstand dismissal for
failure to state a claim unless he pleads too much, that is, facts showing that he cannot prevail in
his lawsuit. See, e.g., Jefferson v. Ambroz, 90 F.3d 1291, 1296 (7th Cir. 1996).
In the Second Amended Complaint, Plaintiff has alleged that he engaged in a proactive
activity – filing grievances – and that the defendants’ actions were motivated by his prior
activity. Although minimally plead, there are sufficient allegations for Count 3 to survive at this
stage of the litigation.
Therefore, the Court hereby ADOPTS the Report and Recommendation (Doc. 152) in its
entirety and the Plaintiff is allowed to proceed on the four counts outlined above. The parties are
DIRECTED to refer to these counts in all future filings. Defendants are GRANTED to 30 days
from the date of this order to file an answer. Magistrate Judge Frazier is DIRECTED to enter a
new scheduling order in this matter.
IT IS SO ORDERED.
DATED: 2/8/2016
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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