Lamon v. David

Filing 7

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge J. Phil Gilbert on 1/13/2014. (tjk)

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

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Case No. 13-cv-1247-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
This matter is before the Court for case management. On December 2, 2013, following
the Memorandum and Order entered in Lamon v. Schuler, Case No. 13-cv-1129-JPG-PMF (Doc.
1 in the instant case), this matter was severed from the original case. Plaintiff was directed to
notify the Court by January 6, 2014, if he did not wish to proceed with this severed claim
(designated as Count 2 in the above threshold order) against Defendant David, the physician at
Shawnee Correctional Center (“Shawnee”) for deliberate indifference to his medical need for a
soy-free diet.1
On December 11, 2013, Plaintiff submitted a Trust Fund Statement (Doc. 6), and
included with it a letter confirming that he wishes to proceed with this severed case and will be
responsible for the filing fee (Doc. 6, p. 4). Accordingly, service shall be ordered below on
Defendant David.

1

As noted in this Court’s merits review order (Doc. 1), Plaintiff has another pending lawsuit over his need
for a soy-free diet, 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).
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Notably, Plaintiff was recently transferred away from Shawnee, where his claim against
Defendant David arose, to Western Illinois Correctional Center (Doc. 5). Among Plaintiff’s
requests for relief in this action is a prayer for an order to require “Defendants to provide him
with a soy-free medical diet for the duration of his prison term” (Doc. 2, p. 50). Presumably,
Plaintiff is not currently under the care of Defendant David now that he has been transferred.
Because Plaintiff is no longer an inmate at Shawnee, his prayer for injunctive relief against the
sole Defendant in this action (Defendant David) would be moot unless he can show “a realistic
possibility that he will again be incarcerated in the same state facility and therefore be subject to
the actions of which he complains here.” Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011)
(citing Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009)).
Plaintiff’s motion for leave to proceed in forma pauperis (“IFP”) (Doc. 3) shall be
addressed in a separate order.
Disposition
IT IS HEREBY ORDERED that the Clerk of Court shall prepare for Defendant
DAVID (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, the Order at Doc. 1, and this Memorandum and Order to the Defendant’s place
of employment as identified by Plaintiff. If the 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 the Defendant, and the Court will
require the Defendant to pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.

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IT IS FURTHER ORDERED that, if the Defendant cannot 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.
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendant (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 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 is REFERRED to the United States Magistrate Judge 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.
IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff, and the
judgment includes the payment of costs under § 1915, Plaintiff will be required to pay the full

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amount of the costs, notwithstanding any grant of an application to proceed in forma pauperis.
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: January 13, 2014
s/ J. Phil Gilbert
U.S. District Judge

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