Garmon v. IDOC

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JESSE C. GARMON,

#B23470,

Plaintiff, Case No. 21-cv-00027-SPM

v.

IDOC,

WARDEN, Centralia CC,

WARDEN, Shawnee CC,

COUNSELOR, Centralia CC,

COUNSELOR, Shawnee CC,

RECORDS OFFICE, Centralia CC,

RECORDS OFFICE, Shawnee CC,

INMATES ISSUES, Springfield IL,

PAROLE BOARD,

DONALD DUNN,

GRIEVANCE OFFICERS, Centralia CC,

GRIEVANCE OFFICERS, Shawnee CC,

and

SPRINGFIELD GRIEVANCE ISSUES

BOARD,

Defendants.

MEMORANDUM AND ORDER

MCGLYNN, District Judge:

Plaintiff Jesse Garmon, an inmate of the Illinois Department of Corrections who is

currently incarcerated at Danville Correctional Center, brings this civil action pursuant to 42

U.S.C. § 1983 for violations of his constitutional rights. Garmon claims that he was not credited

for time served while incarcerated and so his release date of January 22, 2019 was calculated

incorrectly. He seeks monetary damages and good conduct credits.

The Complaint is now before the Court for preliminary review pursuant to 28 U.S.C. §

1915A. Under Section 1915A, any portion of a complaint that is legally frivolous, malicious, fails

to state a claim upon which relief may be granted, or requests money damages from a defendant

who by law is immune from such relief must be dismissed. See 28 U.S.C. § 1915A(b). At this

juncture, the factual allegations of the pro se complaint are to be liberally construed. Rodriguez v.

Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

THE COMPLAINT

Garmon alleges he was arrested on July 14, 2012, and was later sentenced to 6 years

imprisonment and 4 year mandatory supervised release (“MSR”). (Case citation provided 12-CF-

141). On August 18, 2015, he received a second amended sentence for 3 ½ years imprisonment

with 4 years of MSR and credit for time served. After his sentence was recalculated, his projected

release day was June 26, 2015, which had already passed. He was immediately released a few days

later on August 21, 2015. (Doc. 16, p. 31).

After his release, Garmon was arrested again October 8, 2015. He was sentenced to 30 days

in the Sangamon County Jail. Garmon went before the Parole Review Board, which included

member Donald Dunn, at Centralia Correctional Center on March 2, 2016. It was determined that

he violated the conditions of his MSR. He remained in custody, and his release date was wrongly

calculated as January 22, 2019. Garmon claims he did not receive credit for the 2 months and 9

days served from June 16, 2015 through August 21, 2015. He alleges that he over served his

sentence as calculated in case 12-CF-141 when he was incarcerated from October 8, 2015 to

January 22, 2019.

DISCUSSION

The Complaint does not survive preliminary review pursuant to Section 1915A and will be

dismissed. First, Garmon lists as Defendants several entities that cannot be sued under Section

1983. IDOC, the Records Offices of Centralia and Shawnee Correctional Centers, Inmates Issues,

the Parole Board, and the Springfield Grievance Issues Board are not “persons” subject to suit for

money damages under Section 1983. Thomas v. Ill., 697 F. 3d 612, 613 (7th Cir. 2012) (“a state

and its agencies are not suable ‘persons’ within the meaning of section 1983”).

Second, Garmon has not asserted any allegations against the remaining individual

Defendants – the Wardens, Counselors, and Grievance Officers of Centralia and Shawnee

Correctional Centers, and Donald Dunn, a member of the Parole Review Board. With the exclusion

of Donald Dunn, none of these Defendants are mentioned in the statement of claim. Plaintiffs are

required to associate specific defendants with specific claims, so that defendants are put on notice

of the claims brought against them and so they can properly answer the complaint. See Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007); FED. R. CIV. P. 8(a)(2). Where a plaintiff has not

included a defendant in his statement of the claim, the defendant cannot be said to be adequately

put on notice of which claims in the complaint, if any, are directed against him. Furthermore,

merely invoking the name of a potential defendant is not sufficient to state a claim against that

individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). Because Garmon does not

mention the Wardens, Counselors, and Grievance Officers elsewhere in the Complaint, the claims

against them are dismissed.

As for Donald Dunn, all Garmon states is that Dunn was on the Parole Review Board when

the determination was made that he had violated his supervised release. He does not include any

allegations regarding Dunn’s involvement in his sentence recalculation. Therefore, these factual

allegations are not sufficient to state a claim against Dunn. See Sanville v. McCaughtry, 266 F.3d

724, 740 (7th Cir. 2001) (“a defendant must be personally responsible for the deprivation of a

constitutional right”).

For these reasons, the Court finds that Garmon has failed to state a claim against any of the

listed Defendants, and the Complaint is dismissed without prejudice. Garmon will be given,

however, an opportunity to replead his claims in an amended complaint.

MOTION TO AMEND

After filing the Complaint, Garmon filed a Motion for 2nd Amended Civil Rights

Complaint. (Doc. 16). He asks to amend the Complaint to provide the names and professional titles

of Defendants and to add exhibits.

The motion is denied. Garmon may not amend the Complaint in this type of piecemeal

fashion. An amended complaint generally supersedes and replaces the original complaint,

rendering the original complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d

632, 638 n. 1 (7th Cir. 2004). As such, an amended complaint must stand on its own without

reference to any other pleading and must include all claims against all defendants and all

supporting exhibits.

MOTION FOR SERVICE OF PROCESS AT GOVERNMENT EXPENSE

The Court recognizes that because Garmon is incarcerated he may have difficulty

effectuating service within the 90 day time limit imposed by Federal Rule of Civil Procedure 4(m).

Therefore, the Motion for Service of Process at Government Expense (Doc. 15) is granted. If

Garmon files an amended complaint in accordance with the instructions set forth in this Order and

successfully pleads a claim against a defendant, then the Court will conduct service on his behalf.

MOTION FOR RECRUITMENT OF COUNSEL

Garmon has filed a motion asking the Court to recruit counsel on his behalf. (Doc. 14).

Pursuant to 28 U.S.C. § 1915(e)(1), the Court “may request an attorney to represent any person

unable to afford counsel.” When faced with a motion for recruitment of counsel the Court applies

a two part test: “(1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been

effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff

appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007).

Garmon does not provide any information regarding what attempts he has made to recruit

counsel before seeking assistance from the Court. He only states he “never receive[d] a response

from the parties.” (Doc. 14). This statement, without more details, such as names, addresses, or

copies of letters, is not sufficient information for the Court to determine if he has made a reasonable

effort to obtain counsel on his own. Thus, Garmon has failed to meet his threshold burden of

making a “reasonable attempt” to secure counsel. See Santiago v. Walls, 599 F.3d 749, 760 (7th

Cir. 2010). Accordingly, the motion is denied. Should he choose to move for recruitment of

counsel at a later date, the Court directs Garmon to include in the motion the names and address

of at least three attorneys he has contacted, and if available, attach the letters from the attorneys

who declined representation.

DISPOSITION

For the reasons stated above, the Complaint is DISMISSED without prejudice for failure

to state a claim upon which relief may be granted.

The Motion for Recruitment of Counsel is DENIED. (Doc. 14). The Motion for Service of

Process at Government Expense is GRANTED. (Doc. 15). The Motion to Amend is DENIED.

(Doc. 16).

Garmon is GRANTED leave to file a “First Amended Complaint” on or before April 18,

2022. If Garmon fails to file a First Amended Complaint within the allotted time or consistent with

the instructions in this Order, the entire case shall be dismissed with prejudice for failure to comply

with a court order and/or for failure to prosecute his claims. FED. R. CIV. P. 41(b); Ladien v.

Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d 466 (7th Cir. 1994); 28

U.S.C. § 1915(e)(2). The dismissal shall also count as one of his three allotted “strikes” under 28

U.S.C. § 1915(g).

It is strongly recommended that Garmon use the civil rights complaint form designed for

use in this District. He should label the form, “First Amended Complaint,” and he should use the

case number for this action (No. 21-cv-00027-SPM). To enable him to comply with this Order, the

CLERK is DIRECTED to mail Garmon a blank civil rights complaint form. The Court reminds

Garmon that a successful complaint generally alleges “the who, what, when, where, and how....”

See DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990). Thus, the First Amended

Complaint should identify who violated his constitutional rights by name, if known, or using

generic designations (e.g., “John Doe”), if the name is unknown, in the case caption. Garmon

should also include a description of how each Defendant violated his rights in the body of the

amended complaint.

As mentioned above, an amended complaint generally supersedes and replaces the original

complaint, rendering the original complaint void. See Flannery, 354 F.3d at 638 n. 1. The First

Amended Complaint must stand on its own without reference to any previous pleading. Garmon

must re-file any exhibits he wishes the Court to consider. The First Amended Complaint is also

subject to review pursuant to 28 U.S.C. § 1915A.

Finally, Garmon 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: March 21, 2022

s/Stephen P. McGlynn

STEPHEN P. MCGLYNN

United States District Judge