Harris v. Hodge et al

Filing 6

ENTRY STRICKEN: ORDER REFERRING CASE to United States Magistrate Judge Frazier. The following defendants are DISMISSED from this action with prejudice: Hodge, Storm, Adams, J. Tanner, T. Brake, Rousch, Rucker, Marshoff, and Ausbrook.The following de fendants remain in the instant action: McCormick, Carter, Johnson, Downen, and Sims. The Clerk of Court shall prepare for defendants McCormick, Carter, Johnson, Downen, and Sims (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summon s), and (2) Form 6 (Waiver of Service of Summons). T Brake, Warden Hodge, C/O Marshoff, C/O Rousch, C/O Rucker, Warden Storm, J Tanner, C/O Adams and C/O Ausbrook terminated. Signed by Judge J. Phil Gilbert on 8/27/2012. (tjk) Modified on 8/27/2012 (tjk).

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

Case No. 11-cv-973-JPG

WARDEN HODGE, WARDEN STORM, C/O
SIMS, C/O ADAMS, J. TANNER, C/O
MCCORMICK, T. BRAKE, C/O ROUSCH, C/O
RUCKER, C/O MARSHOFF, C/O DOWNEN,
C/O AUSBROOK, C/O JOHNSON, and C/O
CARTER,
Defendants.
MEMORANDUM AND ORDER
Plaintiff, currently incarcerated at Lawrence Correctional Center, has brought this pro se civil
rights action pursuant to 42 U.S.C. § 1983.
Plaintiff claims that officers at Lawrence Correctional Center give him inadequate time to
consume his food at meals, amounting to cruel and unusual punishment in violation of the Eighth
Amendment. Specifically, plaintiff alleges that correctional officers give inmates seven minutes
from the last man who sits down to eat their meals. Because plaintiff receives a soy-free meal, he is
often one of the last inmates seated, and thus only has seven minutes to eat.
Plaintiff further claims he grieved this matter with Wardens Hodge and Storm. Although he
does not allege so in his complaint, plaintiff’s attached grievances indicate that, in retaliation for
filing grievances, Officer Downen forced plaintiff to go to the end of the food line ensuring that he
would be the last person served. Thereafter, Officer Sims also retaliated against plaintiff by ordering
his wing to leave the dining area five minutes after plaintiff had received his meal. Thereafter,
officers McCormick, Carter, and Johnson shook down his cell in retaliation for filing these
grievances.

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Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the
complaint. Accepting plaintiff’s allegations as true, the Court finds that plaintiff has articulated a
colorable federal cause of action:
Count 1:

A claim against defendants McCormick, Carter, Johnson, and Downen for retaliation
against 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
plaintiff adequate time to eat his meals, amounting to cruel and unusual punishment
in violation of the Eighth Amendment.

Defendants Hodge and Storm are dismissed from Count 2 with prejudice for the following
reason. The doctrine of respondeat superior is not applicable to § 1983 actions, and there is no
allegation that defendants Hodge and Storm were personally responsible for the alleged wrong. See
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001).
Defendants Adams, J. Tanner, T. Brake, Rousch, Rucker, Marshoff, and Ausbrook are
dismissed because Plaintiff makes no allegations against them plausibly suggesting a right to relief.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Disposition
The following defendants are DISMISSED from this action with prejudice: Hodge, Storm,
Adams, J. Tanner, T. Brake, Rousch, Rucker, Marshoff, and Ausbrook.
The following defendants remain in the instant action: McCormick, Carter, Johnson,
Downen, and Sims.
The Clerk of Court shall prepare for defendants McCormick, Carter, Johnson, Downen, and
Sims (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6
(Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the
complaint, and this Memorandum and Order to each defendant’s place of employment as identified
by plaintiff. If a defendant fails to sign and return the Waiver of Service of Summons (Form 6) to the
Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps to

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effect formal service on that defendant, and the Court will require that defendant to pay the full costs
of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a defendant who no longer can be found at the work address provided by
plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if not
known, the Defendant’s last-known address. This information shall be used only for sending the
forms as directed above or for formally effecting service. Any documentation of the address shall be
retained only by the Clerk. Address information shall not be maintained in the court file or disclosed
by the Clerk.
Plaintiff shall serve upon defendants (or upon defense counsel once an appearance is
entered), a copy of every pleading or other document submitted for consideration by the Court.
Plaintiff shall include with the original paper to be filed a certificate stating the date on which a true
and correct copy of the document was served on defendants or counsel.

If the plaintiff is

incarcerated in a correctional facility that participates in the Electronic Filing Program, service may
be made in accordance with General Order 2010-1 describing service under that program. Any paper
received by a district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
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).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States Magistrate
Judge Frazier for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Frazier for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties
consent to such a referral.

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If judgment is rendered against plaintiff, and the judgment includes the payment of costs
under Section 1915, plaintiff will be required to pay the full amount of the costs, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. § 1915 for
leave to commence this civil action without being required to prepay fees and costs or give security
for the same, the applicant and his or her attorney were deemed to have entered into a stipulation that
the recovery, if any, secured in the action shall be paid to the Clerk of the Court, who shall pay
therefrom all unpaid costs taxed against plaintiff and remit the balance to plaintiff. Local Rule
3.1(c)(1)
Finally, 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).
IT IS SO ORDERED.
DATED: August 27, 2012

s/ J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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