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Baker v. Parker

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


August 18, 2010

BRANDON BAKER, PLAINTIFF,
v.
LT. PARKER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Gilbert, District Judge

MEMORANDUM AND ORDER

This matter is before the Court for docket control.

Petitioner, an inmate at the Pontiac Correctional Center, filed a civil complaint alleging violations of his constitutional rights. Reviewing the complaint pursuant to 28 U.S.C. § 1915A, the Court identified the following counts:

COUNT 1: Against Defendant Alfon for denying Plaintiff adequate medical care for his seizures in violation of Plaintiff's Eighth Amendment rights.

COUNT 2: Against Defendants Perkins and Alsip for denying Plaintiff adequate medical care for his breathing problem in violation of Plaintiff's Eighth Amendment rights.

COUNT 3: Against Defendants Perkins and Alsip for denying Plaintiff Due Process of law in connection with the disciplinary ticket issued to Plaintiff for assaulting an officer with a waste basket.

COUNT 4: Against Lt. Parker and 3 unknown, unnamed correctional officers for using excessive force against Plaintiff on or about July 18, 2009, in violation of Plaintiff's Eighth Amendment rights.

COUNT 5: Against Defendants Favors, Capel, Barker and Lt. Parker for denying Plaintiff Due Process of law in connection with the disciplinary tickets issued to Plaintiff.

COUNT 6: Against Defendants Hileman, Correctional Officer McCuan, Lt. Parker, Lt. McCuan, Capel, Favors, and Baker for unspecified constitutional violations.

The Court dismissed Counts 3, 5, and 6 pursuant to § 1915A. See (Doc. 8). Although the Court allowed Counts 1, 2, and 4 to proceed, the Court notified Plaintiff that it intended to sever Counts 2 and 4 into separate cases. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff was advised of the consequences that would follow if Counts 2 and 4 were severed into separate actions and allowed time to withdraw either or both counts.

In the meantime, it has come to the Court's attention that Count 1 in this case is exactly the same as Count 1 in Baker v. Parker, Case No. 09-cv-983 (S. D. Ill., filed Nov. 24, 2009). Accordingly, Count 1 of the instant action is DISMISSED without prejudice for being duplicative of a claim already pending in another case. This means that Count 2 may proceed in this case.

As noted in this Court's prior order, (Doc. 8), however, Count 2 and Count 4 do not belong in the same action. Accordingly, Plaintiff is ADVISED that the Court is inclined to sever Count 4 of this action into a separate lawsuit. If Count 4 is severed, it will be removed from this case and opened in a new case. A new case number would be assigned and an additional filing fee would be assessed.

Because the imposition of an additional filing fee may impose a financial burden on him, Plaintiff is FURTHER ADVISED that he may avoid severance (and the imposition of additional filing fees) by filing a motion to voluntarily dismiss Count 4 without prejudice within thirty (30) days of the date of this order. Before filing that motion, plaintiff shall consider whether he could re-file the dismissed claim without running afoul of the applicable 2-year statute of limitations.

IT IS SO ORDERED.

J. Phil Gilbert U. S. District Judge

20100818

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