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Lamon v. Schuler

United States District Court, Seventh Circuit

December 2, 2013

ANDREW LAMON, # R-16056, Plaintiff,
v.
HAROLD SCHULER and DR. ALFONSO DAVID, Defendants.

MEMORANDUM AND ORDER

J. PHIL 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 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-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 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 ...


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