Harris v. Hodge et al

Filing 8

ORDER REFERRING CASE to Magistrate Judge Philip M. 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 defendants remain in the instant action: McCormick, Carter, Johnson, Downen, and Sims. if plaintiff desires to request the appointment of the United States Marshal to serve process on the defendants, plaintiff shall file a motion for service of process at government exp ense, within 35 days of the date of entry of this order (on or before October 2, 2012). The Clerk of Court is DIRECTED to mail to plaintiff the Court's Pro Se Litigant Guide, containing forms and instructions for filing said motion. If plainti ff does not timely file a motion for service of process at government expense, it shall be plaintiff's responsibility to have defendants McCormick, Carter, Johnson, Downen, and Sims served with a summons and copy of the complaint pursuant to Federal Rule of Civil Procedure 4. (Action due by 10/2/2012). Signed by Judge J. Phil Gilbert on 8/28/2012. (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.

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Thereafter, officers McCormick, Carter, and Johnson shook down his cell in retaliation for filing
these grievances.
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.
As to service of process on defendants McCormick, Carter, Johnson, Downen, and Sims,
the Court recognizes that because plaintiff is incarcerated he may have difficulty effectuating

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service within the 120 day time limit imposed by Federal Rule of Civil Procedure 4(m). Plaintiff
has not sought or been granted leave to proceed in forma pauperis in this action, therefore, the
Court will not automatically appoint the United States Marshal to effect service of process upon
defendants. However, if plaintiff desires to request the appointment of the United States Marshal
to serve process on the defendants, plaintiff shall file a motion for service of process at
government expense, within 35 days of the date of entry of this order (on or before October 2,
2012). The Clerk of Court is DIRECTED to mail to plaintiff the Court’s Pro Se Litigant Guide,
containing forms and instructions for filing said motion.
If plaintiff does not timely file a motion for service of process at government expense, it
shall be plaintiff’s responsibility to have defendants McCormick, Carter, Johnson, Downen, and
Sims served with a summons and copy of the complaint pursuant to Federal Rule of Civil
Procedure 4. Plaintiff is advised that only a non-party may serve a summons. FED. R. CIV. P.
4(c)(2).
If plaintiff requests the appointment of the United States Marshal, the Clerk of Court
shall prepare a summons and copies of the complaint and this Memorandum and Order for each
defendant, and shall forward the same to the United States Marshal for service. If plaintiff does
not file a motion for service of process at government expense within 35 days as ordered, the
Clerk shall then prepare a summons for each defendant, and shall forward the summonses and
sufficient copies of the complaint and this Memorandum and Order to plaintiff so that he may
have defendants served.
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

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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, if the United States Marshal is appointed to
serve process pursuant to a motion 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).
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.
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

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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 28, 2012

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

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