Burns v. Apollo et al

Filing 57

OPINION AND ORDER The Court, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), DISMISSES the Plaintiffs claims for injunctive relief as moot. This case is still before the Court on the Plaintiffs damage claims. Signed by Judge Rudy Lozano on 5/22/13. cc:pltf(kjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROBERT L. BURNS,

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Plaintiff,
vs.
MR. APOLLO, et al.,
Defendants.

CAUSE NO. 2:12-CV-158

OPINION AND ORDER
This matter is before the court sua sponte pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) on the question of whether Plaintiff
Robert Burns’s injunctive relief claims are now moot. For the
reasons set forth below, the Court will DISMISS the Plaintiff’s
injunctive relief claims as moot, leaving this case before the
Court only on his damage claims against the Defendants.
BACKGROUND
Burns was a prisoner confined at the Lake County Jail when he
filed his complaint in this case; the Defendants are all Lake
County

Jail

officials.

This

Court

screened

Burns’s

complaint

pursuant to 28 U.S.C. § 1915A, and granted him leave to proceed
against the Defendants for both damages and injunctive relief on
his claim that he was fed food on unclean food trays while he was
incarcerated at the Lake County jail and his claim that jail
officials knowingly served him food to which he is allergic. The

Plaintiff has advised the Court that he is no longer confined at
the Lake County Jail and that he is currently housed at the Cook
County Jail (DE 43).
DISCUSSION
Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) a court must sua
sponte dismiss a claim in a case filed in forma pauperis at any
time if the court determines that it is frivolous or malicious,
fails to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief.
Burns seeks injunctive relief as well as damages, but his injunctive relief claims are now moot because he is no longer housed at
the Lake County Jail. If a prisoner is released or transferred to
another

prison,

“his

request

for

injunctive

relief

against

officials of the first prison is moot unless ‘he can demonstrate
that he is likely to be retransferred.’” Higgason v. Farley, 83
F.3d 807, 811 (7th Cir. 1996), quoting Moore v. Thieret, 862 F.2d
148, 150 (7th Cir. 1988).
It is possible that Burns could at some point in the future
return to the Lake County, but the mere possibility that this might
occur is insufficient to save his injunctive relief claims. The
standard to be applied here is whether he is “likely to be
retransferred,” and there is no reasonable basis that Burns is
likely to return to the Lake County Jail. If he does return to the
Lake County Jail and is subjected to the same conditions he
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complains of in his complaint, he may seek leave of the Court to
renew his claim for injunctive relief.
CONCLUSION
For the foregoing reasons, the Court, pursuant to

28 U.S.C.

§ 1915(e)(2)(B)(ii), DISMISSES the Plaintiff’s claims for injunctive relief as moot. This case is still before the Court on the
Plaintiff’s damage claims.

DATED: May 22, 2012

/S/RUDY LOZANO, Judge
United States District Court

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