Harris v. Hodge et al

Filing 22

MEMORANDUM AND ORDER, Granting 12 MOTION for a Fair and Fundamental Initial Screening Hearing Pursuant to the 6th Amendment U.S. Constitution filed by Larry G Harris and 13 MOTION for Reconsideration re 8 Order, filed by Larry G Harris. Defendants Hodge and Storm shall be reinstated as defendants in this action.The Clerk of Court is directed to issue summons to defendants Hodge and Storm. Signed by Judge J. Phil Gilbert on 12/6/2012. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LARRY G. HARRIS,
Plaintiff,
vs.

Case No. 11-cv-973-JPG

WARDEN HODGE, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff’s motions (Doc. 12 & 13) in which plaintiff
asks this Court to reconsider its order (Doc. 8) dismissing certain defendants from this case.
Courts do not favor motions to reconsider. However, courts have recognized that
occasionally they misunderstand the parties and make errors of fact or of law. Parties should be
allowed to bring such errors to the court's attention to give the court the opportunity to correct them.
Thus, a motion for reconsideration is appropriate to correct manifest errors of law or fact. See
Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987). Here, the Court
misunderstood facts stated in plaintiff’s petition.
In its order referring this case to the magistrate judge, this Court dismissed defendants Hodge
and Storm because it interpreted plaintiff’s complaint as alleging liability on a respondeat superior
theory. Under § 1983, defendants cannot be held liable under a respondeat superior theory. See
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Section 1983 requires an official to be
personally responsible for depriving a plaintiff of a constitutional right. Gentry v. Duckworth, 65
F.3d 555, 561 (7th Cir. 1995). In order for an official to be personally responsible, the official “must
know about the conduct, facilitate it, approve it, condone it, or turn a blind eye.” Id. In his motion
for reconsideration, plaintiff points out to the Court that he attached a letter to Warden Hodge
informing him of his alleged constitutional deprivation and asking that he remedy said violation.

Further, he references a similar letter written to Warden Storm. Because plaintiff does allege that
Warden Hodge and Warden Storm knew of this alleged constitutional violation and condoned the
policy causing the constitutional violation, he has sufficiently stated a claim plausibly suggesting a
right to relief. Accordingly, after reconsidering its previous order, the Court finds that it erred in
dismissing Wardens Hodge and Storm from Count 2 of plaintiff’s complaint.
Next, plaintiff asks this Court to reconsider the portion of its order dismissing defendants
Adams, J. Tanner, T. Brake, Rousch, Rucker, Marshoff, and Ausbrook. The Court found that
plaintiff failed to allege a claim against these defendants in his complaint. Plaintiff, however, argues
that his Exhibit C clearly delineates the direct involvement of these officers in the violation of a
constitutional right. After a review of the file, the Court never received “Exhibit C” to plaintiff’s
complaint. The Court hereby gives plaintiff 30 days from the date of this order to amend his
complaint to include allegations against the above-mentioned defendants sufficient to suggest a right
to relief.
As to service of process on defendants Warden Hodge and Warden Storm, the Court
recognizes that because plaintiff is incarcerated he may have difficulty effectuating service within the
120 day time limit imposed by Federal Rule of Civil Procedure 4(m). Because the Court has already
granted Plaintiff’s motion for service of process at government expense, the Clerk is DIRECTED to
(1) issue summons to defendants Warden Hodge and Warden Storm; (2) prepare, on plaintiff’s
behalf, a form USM-285 for each defendant; and (3) deliver service packets for each defendant,
consisting of the completed summons, a USM-285 form, a copy of the complaint, a copy of this
Memorandum and Order, and a copy of the Memorandum and Order at Doc. No. 8 to the United
States Marshal Service. The United States Marshall SHALL, pursuant to Federal Rule of Civil
Procedure 4, personally serve upon defendants Warden Hodge and Warden Storm the summons, a
copy of the complaint, a copy of the Memorandum and Order and a copy of the Memorandum and

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Order at Doc. No. 8. All costs of service shall be advanced by the United States, and the Clerk shall
provide all necessary materials and copies to the United States Marshal Service.
Plaintiff is ORDERED to serve upon defendants or, if an appearance has been entered by
counsel, upon that attorney, a copy of every pleading or other document submitted for consideration
by this Court. Plaintiff shall include with the original paper to be filed a certificate stating the date
that a true and correct copy of the document was mailed to each defendant or defendant’s counsel.
Any paper received by a district judge or magistrate judge which has not been filed with the Clerk or
which fails to include a certificate of service will be disregarded by the Court.
IT IS FURTHER ORDERED that, with respect to a defendant who no longer can be found
at the work address provided by plaintiff, the employer shall furnish the United States Marshal with
the defendant’s current work address, or, if not known, the defendant’s last-known address. This
information shall be used only for effecting service of process. Any documentation of the address
shall be retained only by the Marshal. Address information shall not be maintained in the court file
or disclosed by the Marshal.
Defendants are ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk of Court and
each opposing party informed of any change in his address; the Court will not independently
investigate his whereabouts. This shall be done in writing and not later than 7 days after a transfer or
other change in address occurs. Failure to comply with this order will cause a delay in the
transmission of court documents and may result in dismissal of this action for want of prosecution.
See Fed. R. Civ. P. 41(b).
Accordingly, the Court GRANTS plaintiff’s motions (Docs. 12 & 13). Defendants Warden
Hodge and Warden Storm shall be REINSTATED as defendants in this action and plaintiff shall

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have 30 days from the date of this order to amend his complaint alleging a cause of action against
defendants Adams, J. Tanner, T. Brake, Rousch, Rucker, Marshoff, and Ausbrook.
IT IS SO ORDERED.
DATED: December 6, 2012
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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