Lamon v. Brown et al

Filing 11

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson, ORDER Directing Monthly Payments be made from Prison Account of Lamon, Granting 10 MOTION for Leave to Proceed in forma pauperis filed by Andrew Lamon, Denying 9 MOTION for Leave to Fi le filed by Andrew Lamon. Defendants WINDSOR, TICER, RUPCICH and UNKNOWN INVESTIGATOR are DISMISSED with prejudice.The Clerk of Court shall prepare for Defendants BROWN and SCHULER: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge G. Patrick Murphy on 2/6/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANDREW LAMON, R-16056
Plaintiff,
vs.
KENNY BROWN, ANGELA WINDSOR,
MRS. TICER, JOE RUPCICH,
LT. SCHULER and
UNKNOWN INVESTIGATOR,
Defendants.

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Case No. 12-cv-1176-GPM

MEMORANDUM AND ORDER
Murphy, District Judge:
Plaintiff, Andrew Lamon, is currently incarcerated at Pontiac Correctional Center,
(“Pontiac”) and has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 for
alleged constitutional violations at Big Muddy Correctional Center (“Big Muddy”). Plaintiff
claims that his First Amendment rights were violated by Defendants.

Specifically, Plaintiff

states that between January 12, 2012, and May 23, 2012, Defendants threatened Plaintiff for his
participation as a witness in a lawsuit against the Illinois Department of Corrections. Moreover,
Plaintiff claims Defendants wrongfully placed him in segregation, prematurely terminated his job
assignment and ultimately transferred him to Pontiac, a facility with a higher security
classification.
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 Plaintiff has stated a
claim against Defendants Brown and Schuler for retaliation. Plaintiff’s claims against Defendant
Windsor, the Warden of Big Muddy, Mrs. Ticer, Assignment Officer, Attorney General Rupcich
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and Unknown Investigator, however, shall be dismissed with prejudice for failure to state a
claim.
Plaintiff has not alleged that any one of these individuals was personally responsible for
any acts of retaliation. Warden Windsor cannot incur liability merely through her position as a
supervisor. “The doctrine of respondeat superior does not apply to § 1983 actions; thus to be
held individually liable, a defendant must be ‘personally responsible for the deprivation of a
constitutional right.’” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (quoting
Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)).
Assistant Attorney General Rupcich, and the Unknown investigator were merely carrying
out their duties toward Plaintiff as a named witness in a lawsuit against the Illinois Department
of Corrections. "In initiating a prosecution and in presenting the State's case, the prosecutor is
immune from a civil suit for damages under § 1983." Imbler v. Pachtman, 424 U.S. 409, 431
(1976). Plaintiff has not linked either of these Defendants to any of the retaliatory conduct about
which he makes claims. These defendants shall be dismissed with prejudice.
Pending Motions
Plaintiff filed a motion for leave to file an amended complaint (Doc. 9) on January 28,
2013, more than seven months after filing his original complaint in the Central District of
Illinois. At this time, Plaintiff’s motion will be DENIED, without prejudice.
Plaintiff also filed a motion for leave to proceed in forma pauperis (“IFP”) on January 28,
2013 (Doc. 10). Plaintiff states in his motion that the Central District of Illinois denied his
original motion for leave to proceed IFP. According to the docket sheet, it appears that this is
correct. However, the Central District of Illinois, after denying Plaintiff’s motion for IFP,
assessed an initial partial filing fee of $5.00 and ordered monthly payments. Thus far, Plaintiff

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has made four payments toward the $350.00 filing fee, including the initial partial payment of
$5.00. Therefore, Plaintiff’s motion for leave to proceed IFP (Doc. 10) will be GRANTED, and
Plaintiff is ORDERED to continue making payments toward the $350.00 filing fee as follows:
Plaintiff shall make monthly payments of 20% of the preceding month’s income credited to
Plaintiff’s prison trust fund account until the $350.00 filing fee is paid in full. The agency having
custody of Plaintiff shall forward payments from Plaintiff’s account to the Clerk of this Court
each time the amount in the account exceeds $10 until the $350.00 filing fee is paid. Payments
shall be mailed to: Clerk of the Court, United States District Court for the Southern District of
Illinois, P.O. Box 249, East St. Louis, Illinois 62202. The Clerk is DIRECTED to mail a copy
of this Order to Plaintiff and to the Trust Fund Officer at the Shawnee Correctional Center upon
entry of this Order.
Disposition
Defendants WINDSOR, TICER, RUPCICH and UNKNOWN INVESTIGATOR are
DISMISSED with prejudice.
The Clerk of Court shall prepare for Defendants BROWN and SCHULER: (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 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.

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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. 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
Donald G. Wilkerson for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Wilkerson
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.
If judgment is rendered against Plaintiff, and the judgment includes the payment of
costs under § 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).

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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: February 6, 2013
/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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