Hill v. Tilden et al
Filing
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MERIT REVIEW OPINION entered by Chief Judge James E. Shadid on 12/10/14. IT THEREFORE ORDERED: 1) Plaintiff's Motion for Leave to File Amended Complaint 16 is GRANTED. 2) The federal claims in Plaintiff's Amended Complaint are dismissed f or failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. Any further amendments would be futile as providing an allegedly high soy diet does not rise to the level of cruel and unusual punishment as to be prohibited under the Eighth Amendment. Similarly, thefailure to order thyroid testing, based solely on Plaintiff's belief that his symptoms are the result of thyroid dysfunction, constitutes a difference of opinion as to the treatment Plaintiff wants prov ided him, not cruel and unusual punishment. This case is therefore closed. The clerk is directed to enter a judgment pursuant to Fed. R. Civ. P. 58. All pending Motions are renderedMOOT and all internal deadlines are VACATED. 3) The Court dismisses P laintiff's state law medical malpractice claim for lack of subject matter jurisdiction.4) This dismissal shall count as one of the plaintiff's three allotted "strikes" pursuant to 28 U.S.C. Section 1915(g). The Clerk of the Court is directed to record Plaintiff's strike in the three-strike log. 5) Plaintiff must still pay the full docketing fee of $350 even though his case hasbeen dismissed. The agency formerly having custody of Plaintiff shall continue to make mont hly payments to the Clerk of Court, as directed in the Court's prior order, if such funds are available. If funds are not available the Plaintiff is to make arrangements for periodic paymentson the filing fee with the Clerk of Court. 6) If Plain tiff wishes to appeal this dismissal, he must file a notice of appeal with this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). A motion for leave toappeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal. See Fed.R. App. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the $505 appellate filing fee irrespective of the outcome of the appeal. (See Full Written Order).(VP, ilcd)
E-FILED
Wednesday, 10 December, 2014 03:26:04 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
DEMETRIUS G. HILL,
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Plaintiff,
v.
ANDREW TILDEN, et al.,
Defendants.
No.: 14-cv-1038-JES-JEH
MERIT REVIEW ORDER
Plaintiff, proceeding pro se, filed a Motion for Leave to File an Amended Complaint
[16], which the Court hereby GRANTS. Plaintiff, who was recently released from the Illinois
Department of Corrections, was at all times relevant to the Complaint incarcerated at the Pontiac
Correctional Center. Plaintiff ‘s Amended Complaint alleges a § 1983 claim of Eighth
Amendment deliberate indifference to his serious medical needs; and a state law claim of
medical malpractice against, Dr. Andrew Tilden, Dr. Jan Doe, Warden Randy Pfister and
Director Salvador Godinez. Plaintiff also requests Injunctive Relief.
The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A. In
reviewing the Complaint, the Court accepts the factual allegations as true, liberally construing
them in Plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 649-51 (7th Cir. 2013). However,
conclusory statements and labels are insufficient. Enough facts must be provided to “state a
claim for relief that is plausible on its face.” Alexander v. United States, 721 F.3d 418, 422 (7th
Cir. 2013)(citation and internal quotation marks omitted).
Plaintiff claims that he has suffered severe weight loss, panic attacks, digestive tract pain,
fatigue and trouble concentrating. He received treatment by Dr. Andrew Tilden, and Dr. Jan Doe
who ordered blood work and scheduled Plaintiff for weekly checks. The Plaintiff was apparently
1
tested for HIV/AIDS and objects, indicating that he should have been tested for thyroid
dysfunction. Plaintiff believes that his symptoms are attributable to a high soy diet and litigates
defendants’ refusal to give him a soy free diet. He alleges, further, that defendants have refused
to order the thyroid testing he has requested and have, therefore, refused him necessary medical
treatment. This, despite, Plaintiff’s admission that he was being checked on a weekly basis
during this period.
Plaintiff claims to have contacted all of the defendants and to have sent them literature
regarding the dangers of his allegedly high soy diet. Plaintiff claims that all defendants were
“aware of the harmful effect of the consumption of soy laden meals” and consciously
disregarded that risk. [ECF 16 p. 13]. At the outset Warden Randy Pfister and Director Salvador
Godinez must be dismissed as Plaintiff fails to allege that they personally participated in the
alleged deprivation of his Eight Amendment rights . Section 1983 does not allow actions against
individuals just for their supervisory role of others. Individual liability under § 1983 can only be
based upon a finding that the defendant caused the deprivation alleged. Palmer v. Marion
County, 327 F.3d 588, 594 (7th Cir. 2003)(internal quotations and citations omitted). Here,
Plaintiff claims that he sent letters and literature to which these defendants did not respond. This
is not enough to establish individual liability. “Plaintiff’s belief that they should have intervened
is not enough to establish liability under §1983.” Glasco v. Prulhiere, 2009 WL 54298, at *1
(S.D. Ind. Jan. 8, 2009) (“Even if [the plaintiff] wrote letters to these defendants, this fact alone
is insufficient to support recovery from supervisory defendants.”); Diaz v. McBride, 1994 WL
750707, at *4 (N.D. Ind. Nov. 30,1994) (holding that a plaintiff could not establish personal
involvement, and subject a prison official to liability under section 1983, merely be sending the
official various letters or grievances complaining about the actions or conduct of subordinates.)
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In this case, Pfister and Godinez have added insulation for any claimed failure to intervene as
they can be found to have reasonably relied on the expertise of the medical personnel who were
caring for Plaintiff. Arnett v. Webster, 648 F.3d 742, 755 (7th Cir. 2011).
As to Drs. Tilden and Doe, Plaintiff fails at the pleadings stage to sufficiently allege
deliberate indifference to his serious medical needs. “[T]he Eighth Amendment ‘forbids cruel
and unusual punishments; it does not require the most intelligent, progressive, humane, or
efficacious prison administration.’” Lee v. Young, 533 F.3d 505, 511 (7th Cir. 2008). Plaintiff
was being seen on a weekly basis and was subjected to blood testing for HIV/AIDS. While he
claims that his thyroid should have been tested, he offers no objective basis for this opinion. A
Plaintiff’s disagreement with the plan of care determined by his physicians does not create a
constitutionally cognizable right. See Snipes v. De Tella, 95 F.3d 586, 591 (7th Cir. 1996),
“Medical decisions that may be characterized as … matter[s]for medical judgment, (internal cite
omitted), such as whether one course of treatment is perferable to another, are beyond the
[Eighth] Amendment’s purview.”
Plaintiff fails to successfully plead that Defendants engaged in cruel and unusual
punishment in either the meals or medical care provided. See also, Adams v. Talbor, 2013 WL
5940630 *2 (C.D. Ill.)(dismissing soy claim at merit review stage for failure to state a claim and
listing other cases); Smith v. Rector, 2013 WL 5436371 (S.D. Ill.)(prisoner’s “vague allegations
that the prison meals are nutritionally inadequate or depend too heavily on soy products do not
support a constitutional claim.”).
As the Court is dismissing Plaintiff’s federal claims it declines to exercise supplemental
jurisdiction over his state law claim. 28 U.S.C. § 1367(c)(3). In addition, Plaintiff’s Request for
Injunctive Relief is now MOOT. He cannot establish imminent danger where he is no longer in
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the custody of the Illinois Department of Corrections. Ty, Inc. v. Jones Group, Inc., 237 F.3d
891, 895 (7th Cir. 2001); (A party seeking the injunction has the burden to prove that he will
suffer irreparable harm during the time prior to final resolution of his claims).
IT THEREFORE ORDERED:
1) Plaintiff’s Motion for Leave to File Amended Complaint [16] is GRANTED.
2) The federal claims in Plaintiff's Amended Complaint are dismissed for failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. § 1915A. Any further
amendments would be futile as providing an allegedly high soy diet does not rise to the level of
cruel and unusual punishment as to be prohibited under the Eighth Amendment. Similarly, the
failure to order thyroid testing, based solely on Plaintiff’s belief that his symptoms are the result
of thyroid dysfunction, constitutes a difference of opinion as to the treatment Plaintiff wants
provided him, not cruel and unusual punishment. This case is therefore closed. The clerk is
directed to enter a judgment pursuant to Fed. R. Civ. P. 58. All pending Motions are rendered
MOOT and all internal deadlines are VACATED.
3) The Court dismisses Plaintiff’s state law medical malpractice claim for lack of
subject matter jurisdiction.
4)
This dismissal shall count as one of the plaintiff's three allotted “strikes” pursuant
to 28 U.S.C. Section 1915(g). The Clerk of the Court is directed to record Plaintiff's strike in the
three-strike log.
5)
Plaintiff must still pay the full docketing fee of $350 even though his case has
been dismissed. The agency formerly having custody of Plaintiff shall continue to make
monthly payments to the Clerk of Court, as directed in the Court's prior order, if such funds are
4
available. If funds are not available the Plaintiff is to make arrangements for periodic payments
on the filing fee with the Clerk of Court.
6)
If Plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this
Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a). A motion for leave to
appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal. See Fed.
R. App. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the $505 appellate
filing fee irrespective of the outcome of the appeal.
12/10/2014
ENTERED
s/ James E. Shadid
JAMES E. SHADID
UNITED STATES DISTRICT JUDGE
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