Hollgarth v. Buffet et al

Filing 11

SECOND MERIT REVIEW OPINION: Plaintiff's motion for appointed counsel is denied. (d/e 4 .) Plaintiff's amended complaint is dismissed with prejudice for failure to state a federal claim. The clerk is directed to close this case and e nter judgment pursuant to Fed. R. Civ. P. 58. This dismissal shall count as one of the plaintiff's three allotted "strikes" pursuant to 28 U.S.C. Section 1915(g). Plaintiff must still pay the full filing fee of $350 even thoug h his case has been dismissed. The agency having custody of Plaintiff shall continue to make monthly payments to the Clerk of Court, as directed in the Court's prior order. 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. The clerk is directed to record Plaintiff's strike in the three-strike log. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 2/21/2018. (GL, ilcd)

E-FILED

Wednesday, 21 February, 2018 12:22:29 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
LINDY HOLLGARTH,
Plaintiff,
v.
SHERIFF HOWARD BUFFET,
et al.,
Defendants.

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18-CV-2026

SECOND MERIT REVIEW OPINION
On February 6, 2018, Plaintiff’s complaint was dismissed
without prejudice to filing an amended complaint. Plaintiff
alleged in his original complaint that he bit into a sandwich at the
Macon County Jail which, unbeknownst to Plaintiff, contained a
woman’s press-on fingernail. The fingernail allegedly cut the roof of
Plaintiff’s mouth before Plaintiff could spit out the fingernail.
In dismissing the complaint, the Court noted that
an isolated incident of being served contaminated food does not rise
to a constitutional violation. See Perez v. Sullivan, 100 F’Appx. 564
(7th Cir. 2004)(not reported in Fed. Rptr.)(affirming dismissal for

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failure to state a claim allegations that detainee became sick from
isolated incident of being served spoiled milk); Teen v. St. Clair
County Jail, 2017 WL 3670164 (S.D. Ill. 2017)(not reported in Fed.
Rptr.)(single episode of food contamination without prior
occurrences of contamination stated no constitutional claim). The
Court also noted that the individuals who prepared the food might
have been negligent, but that negligence does not violate the U.S.
Constitution. McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.
2010)(“[N]egligence, even gross negligence, does not violate the
Constitution.”) The Court concluded that Plaintiff’s allegations did
not allow a plausible inference of a systemic problem with
contaminated food at the Jail. The Court noted that in the eight
months since Plaintiff’s detention, he had alleged only one incident
of contaminated food, which would be about one meal out of well
over 600 meals, if Plaintiff is served three meals a day.
Plaintiff has filed an amended complaint, but the Court will
first address Plaintiff’s motion for counsel. Plaintiff has not set
forth what efforts he made to find counsel on his own, which is
generally a requirement before the merits of the motion may be
addressed. Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007). Even
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if Plaintiff had made that showing, Plaintiff appears competent at
this stage to proceed pro se in light of the simple nature of his
claim. Id. Plaintiff’s allegations clearly communicate the basis for
his claim: a fingernail was in one of his meals. As explained below,
Plaintiff’s allegations state no federal claim, but that does not mean
he is not competent to proceed pro se.
Plaintiff’s amended complaint adds only factual conclusions
without any factual details to support those conclusions. Plaintiff
alleges in his amended complaint that “numerous complaints have
been made about objects in food” and that other inmates have been
hurt by the food. These allegations are too conclusory, not
providing any information on when this happened, what was in the
food, or who ate the contaminated food. “Generalized factual
conclusions” must be supported by enough “specific factual
allegations” to state a plausible claim for relief. Engel v. Buchan,
710 F.3d 698, 709 (7th Cir. 2013). If the problem was systemic,
Plaintiff should be able to allege more than one specific incident of
contaminated food over the course of over eight months.
Plaintiff also alleges that his request to see a nurse for the cut
on the roof of his mouth was denied for four days. Deliberate
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indifference to a serious medical need violates an inmate’s or
detainee’s rights. But no plausible inference arises that Plaintiff’s
cut on the roof of his mouth, caused by biting down on one
fingernail, was a serious medical need. See, e.g., James v.
Cartwright, 659 F’Appx. 888 (7th Cir. 2016)(not published in
F.Rptr.)(alleged minor cuts and bruises from alleged excessive force
were not serious medical needs)(citing Pinkston v. Madry, 440 F.3d
879, 891 (7th Cir. 2006) (split lip and swollen cheek not serious
medical needs); Davis v. Jones, 936 F.2d 971, 972–73 (7th Cir.
1991)(one-inch cut and scraped elbow not serious medical needs).
Plaintiff additionally alleges that his grievances were denied
and that unidentified protocols were not followed in investigating
the incident. There is no constitutional right to a grievance
procedure, so allegations about an ineffective grievance procedure
or the failure to follow a grievance procedure do not state a
constitutional claim. Antonelli v. Sheahan, 81 F.3d 1422, 1430
(7th Cir. 1996). Similarly, the failure to follow internal protocols
does not state a constitutional claim. See Thompson v. City of
Chicago, 472 F.3d 444, 454 (7th Cir. 2006)(“[T]his court has
consistently held that ‘42 U.S.C. § 1983 protects plaintiffs from
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constitutional violations, not violations of state laws or . . .
departmental regulations and police practices.'")(quoted cite
omitted).
In sum, the Court still cannot discern a federal claim from
Plaintiff’s allegations. No one wants to bite down on a sandwich
and discover a fingernail in the roof of one’s mouth. Plaintiff clearly
thinks the situation should have been taken more seriously. But
not every adverse event that occurs in jails or prisons rises to the
level of a constitutional violation. What happened to Plaintiff was
regrettable, but was simply not serious enough to be actionable
under the Constitution. Accordingly, this case will be dismissed,
with prejudice, for failure to state a claim.
IT IS ORDERED:
1)

Plaintiff’s motion for appointed counsel is denied. (d/e 4.)

2)

Plaintiff's amended complaint is dismissed with prejudice

for failure to state a federal claim.
3)

The clerk is directed to close this case and enter

judgment pursuant to Fed. R. Civ. P. 58.

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4)

This dismissal shall count as one of the plaintiff's three

allotted “strikes” pursuant to 28 U.S.C. Section 1915(g).
5)

Plaintiff must still pay the full filing fee of $350 even

though his case has been dismissed. The agency having custody of
Plaintiff shall continue to make monthly payments to the Clerk of
Court, as directed in the Court's prior order.
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.
7)

The clerk is directed to record Plaintiff's strike in the

three-strike log.
ENTERED: February 21, 2018
FOR THE COURT:

s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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