Lamon v. David

Filing 1

MEMORANDUM AND ORDER severing case no. 13-1129-JPG. Signed by Judge J. Phil Gilbert on 12/2/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANDREW LAMON, # R-16056,
Plaintiff,
vs.
HAROLD SCHULER
and DR. ALFONSO DAVID,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 13-cv-1129-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff, currently incarcerated at Shawnee Correctional Center (“Shawnee”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving a 30-year
sentence for aggravated criminal sexual assault and a five-year sentence for a drug offense.
Plaintiff claims that he was transferred from the Big Muddy River Correctional Center
(“BMRCC”) to the higher-security Shawnee prison in retaliation for his participation in a
lawsuit, and that the prison doctor at Shawnee has been deliberately indifferent to his serious
medical condition.
More specifically, Plaintiff claims that in 2010, he drafted a lawsuit on behalf of fellow
prisoner Jo-Julien Hicks, which was filed in the Central District of Illinois (Hicks v. Pierce, Case
No. 10-cv-1021-HAB) (Doc. 1, pp. 6-12; 27, 29). Inmate Hicks died, and prosecution of the
civil rights matter was continued by his mother. Plaintiff continued to participate in the case as a
witness while he was incarcerated at BMRCC, where he was deposed and testified at a Pavey
hearing (Doc. 1, p. 29).
On May 3, 2012, Plaintiff wrote to the presiding judge in that pending case, requesting
Page 1 of 7

the court’s intervention because his safety was being threatened by a guard at BMRCC (Doc. 1,
p. 31). Plaintiff sent a similar request to the Attorney General, who was representing the Illinois
Department of Corrections in that case. On May 8, 2012, Defendant Schuler (Internal Affairs
officer at BMRCC) put Plaintiff in segregation because of his letters. Although Plaintiff was not
charged with any disciplinary infraction, on May 16, 2012, Defendant Schuler revoked
Plaintiff’s minimum-security classification and transferred him to Shawnee, a “disciplinary
prison” (Doc. 1, pp. 27, 29). Plaintiff asserts these actions were taken in retaliation for Plaintiff’s
plea for outside help to stop the threats that had been leveled against him because of his
involvement in the lawsuit.
Plaintiff’s second claim is against Shawnee physician Defendant David, who diagnosed
Plaintiff with thyroid disease on May 31, 2012 (Doc. 1, p. 30). According to Plaintiff, Defendant
David determined that the soy content in the prison diet had caused Plaintiff’s thyroid condition.
He prescribed medication which Plaintiff must take for the rest of his life. He also warned
Plaintiff “off the record” to avoid soy foods (Doc. 1, pp. 28, 30). However, he would not
prescribe Plaintiff a soy-free diet, because “IDOC does not have non soy diets” (Doc. 1, p. 28).
Plaintiff becomes physically ill each time he eats a meal containing soy. He cannot
always afford to purchase food from the commissary. Plaintiff sent an emergency grievance to
the Shawnee warden in July 2012 asking for a soy-free medical diet, but never got a response
(Doc. 1, p. 30). After having a severe reaction to the prison’s soy meals, he wrote Defendant
David in July 2012 making the same request. Defendant David would not prescribe a special
diet, but continued to advise Plaintiff to avoid soy. On October 22, 2013, Plaintiff again asked
Defendant David for a non-soy diet. He contends that Defendant David knows that his thyroid
condition is caused and aggravated by soy consumption, and that his refusal to prescribe a soy-

Page 2 of 7

free diet is not based on sound medical judgment, but instead on the alleged unavailability of a
non-soy diet in prison (Doc. 1, p. 28). This failure to act has deprived Plaintiff of a nutritionally
adequate diet which does not endanger his present and future health.
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
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.
Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has articulated a
colorable retaliation claim against BMRCC Defendant Schuler, for placing him in segregation,
changing his security classification, and transferring him to a higher-security prison, because of
his protected activity (Count 1). Plaintiff has also stated a claim against Shawnee Defendant
David for deliberate indifference to his medical need for a soy-free diet (Count 2).1 However,
these two claims are not legally or factually related to one another, and are subject to severance.
In George v. Smith, 507 F.3d 605 (7th Cir. 2007), the Seventh Circuit emphasized that
unrelated claims against different defendants belong in separate lawsuits, “not only to prevent the
sort of morass” produced by multi-claim, multi-defendant suits “but also to ensure that prisoners
pay the required filing fees” under the Prison Litigation Reform Act. George, 507 F.3d at 607,
(citing 28 U.S.C. § 1915(b), (g)). Consistent with the George decision and Federal Rule of Civil
Procedure 21, the Court shall sever Count 2 of Plaintiff’s complaint, and shall open a new case
with a newly-assigned case number for that claim. However, Plaintiff shall have an opportunity
to voluntarily dismiss the newly severed case if he does not wish to proceed on that claim or
1

The Court takes judicial notice of Plaintiff’s pending soy-diet lawsuit in the Central District of Illinois,
Lamon v. Pierce, Case No. 12-cv-1267-JES-JAG (filed Aug. 31, 2012). That case was stayed on March
4, 2013, pending the outcome of another soy-diet lawsuit, Harris v. Brown, Case No. 07-cv-3225 (C. D.
Ill.), because “The outcome in Harris may moot or modify the plaintiff's claim in this case and may
enable the Court to make a more informed decision.” (d/e of March 4, 2013, Case No. 12-cv-1267).
Page 3 of 7

incur the additional filing fee.
Pending Motion
Plaintiff has filed a motion for leave to proceed in forma pauperis (“IFP”) (Doc. 2), and
has submitted an affidavit stating that he has received only minimal income for the last twelve
months, and has no assets or cash on hand. Based on Plaintiff’s affidavit of indigence, the Court
concludes that he is unable to pay in full the $350.00 filing fee in this case at this time, and
therefore it is appropriate to permit him to proceed IFP in this case without full prepayment of
the fee. Accordingly, Plaintiff’s motion to proceed IFP (Doc. 2) is GRANTED.
However, Plaintiff has failed to provide his prisoner trust fund account information as
required by the PLRA to determine the amount of his initial partial payment. Pursuant to 28
U.S.C. § 1915(b)(1), the Court must review the prisoner trust fund account statement for the six
month period immediately preceding the filing of this action. IT IS THEREFORE ORDERED
that Plaintiff shall provide the Clerk of Court with the attached certification completed by the
Trust Fund Officer at the facility and a copy of his trust fund account statement (or institutional
equivalent) for the period from May 4, 2013, to November 4, 2013, no later than January 16,
2014 (45 days from the date of this order). Failure to do so will result in dismissal of this action
for failure to comply with an Order of this Court. FED. R. CIV. P. 41(b). See generally Ladien v.
Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994).
The Clerk is DIRECTED to mail a copy of this Order and the certification form to the
Trust Fund Officer at Shawnee Correctional Center.
Disposition
IT IS HEREBY ORDERED that Plaintiff’s claim for deliberate indifference to his
medical need for a soy-free diet (COUNT 2), which is unrelated to the retaliation claim in Count

Page 4 of 7

1, is SEVERED into a new case. That new case shall be: Claim against DEFENDANT DAVID
for deliberate indifference to medical needs.
The new case SHALL BE ASSIGNED to the undersigned District Judge for further
proceedings. In the new case, the Clerk is DIRECTED to file the following documents:
(1)
(2)
(3)

This Memorandum and Order
The Original Complaint (Doc. 1)
Plaintiff’s motion to proceed in forma pauperis (Doc. 2)

Plaintiff is ADVISED that if, for any reason, he does not wish to proceed with the newlyopened case, he must notify the Court in writing within 35 days (on or before January 6, 2014).
Unless Plaintiff notifies the Court that he does not wish to pursue the newly opened action, he
will be responsible for an additional $350.00 filing fee in the new case. Service shall not be
ordered on Defendant David until after the deadline for Plaintiff’s response.
IT IS FURTHER ORDERED that the only claim remaining in this action is COUNT 1
against Defendant Schuler, for retaliation. This case shall now be captioned as: ANDREW
LAMON, Plaintiff, vs. HAROLD SCHULER, Defendant.
IT IS FURTHER ORDERED that Defendant DAVID is TERMINATED from this
action with prejudice.
As to COUNT 1, which remains in the instant case, the Clerk of Court shall prepare for
Defendant 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 Defendant’s place of
employment as identified by Plaintiff. If 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 Defendant, and the Court will

Page 5 of 7

require Defendant to pay the full costs of formal service, to the extent authorized by the Federal
Rules of Civil Procedure.
If the Defendant cannot be found at the 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, nor disclosed by the Clerk.
Plaintiff shall serve upon Defendant (or upon defense counsel once an appearance is
entered), a copy of every further 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 any document was served on Defendant 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.
Defendant is 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 a United States
Magistrate Judge for further pre-trial proceedings.
Further, this entire matter shall be REFERRED to the United States Magistrate Judge for
disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all 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).

Page 6 of 7

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: December 2, 2013
s/ J. Phil Gilbert
United States District Judge

Page 7 of 7