Lewis v. Baldwin et al

Filing 7

MERIT REVIEW OPINION: It is ordered that the Clerk is directed to: Dismiss Defendants Dr. Sood and Crouse for failure to state a claim upon which relief can be granted pursuant to § 1915A; 2) Dismiss Plaintiff's motion for a status update as moot, 6 : 3) Attempt service on Defendants pursuant to the standard procedures; 4) set an internal court deadline 60 days from the entry of this order for the court to check on the status of service and enter scheduling deadlines; and, 5) enter the Court's standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. (Rule 16 Deadline 1/9/2017) SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 11/8/2016. (GL, ilcd)

E-FILED

Tuesday, 08 November, 2016 02:04:32 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SAMUEL LEWIS,
Plaintiff,
v.
JOHN BALDWIN, et. al.,
Defendants.

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CASE NO. 16-CV-4120

MERIT REVIEW OPINION
Sue E. Myerscough, U.S. District Judge.
This cause is before the Court for merit review of the pro se
Plaintiff’s complaint 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 (7th Cir. 2103). 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. U.S., 721
F.3d 418, 422 (7th Cir. 2013)(quoted cite omitted).
ALLEGATIONS

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The Plaintiff alleges his constitutional rights were violated at
Hill Correctional Center by former Illinois Department of
Corrections (IDOC) Director John Baldwin, Warden Stephanie
Dorethy, Assistant Warden Allen Henderson, Dietary Manager Dave
Windstead, Health Care Administrator Lois Lindorff, Correctional
Officer Crouse, and Dr. Kul Sood.
Plaintiff says Hill Correctional Center Staff were aware of a
rodent infestation in the Dietary Department, and Plaintiff claims
he had seen mice running underneath the tables. On September 4,
2015, Plaintiff was eating a dinner of rice and soy meat when he
found a bone in his food. Plaintiff was sent to the Health Care Unit
where a nurse took Plaintiff’s vital signs and called Dr. Sood. The
medical record supplied by Plaintiff indicates Plaintiff told the nurse
he found a “mouse leg” in his food. (Comp., p. 17) Health Care
Administrator Lindorff advised Plaintiff they would keep him
overnight for observation, and he would see the doctor the next
morning.
A few minutes later, Internal Affairs Officer Crouse came to
interview Plaintiff. The officer told Plaintiff another inmate claimed
Plaintiff brought the bone to the dietary department and put it in
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his own food. Plaintiff was threatened with disciplinary action, but
Plaintiff told the officer he was telling the truth.
Plaintiff then asked the nurse and Administrator Lindorff for
something for his upset stomach, but he was told there was nothing
they could do because of the pending investigation. Plaintiff was
then sent back to his housing unit. Plaintiff claims he suffered with
stomach pain, nausea and vomiting for an unspecified period of
time. He asked Defendant Lindorff for additional medical care, but
she ignored his request.
Plaintiff wrote letters to Warden Dorethy and Assistant
Warden Allen Henderson, but he did not receive a response.
Plaintiff also filed grievances, but claims IDOC Director Baldwin
denied each grievance.
ANALYSIS
Plaintiff has divided his complaint into three “counts”
including unsanitary conditions in dietary, denial of medical care,
and denial of a healthy diet. In order to demonstrate an Eighth
Amendment claim, a plaintiff must show that: (1) he was
“incarcerated under conditions posing a substantial risk of serious
harm,” and (2) defendant-officials acted with “deliberate
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indifference” to that risk. Santiago v. Walls, 599 F.3d 749, 756 (7th
Cir.2010); Farmer v. Brennan, 511 U.S. 825, 834 (1994). Plaintiff
might be able to demonstrate an Eighth Amendment violation in
this case if he can establish Defendants were aware of a widespread
rodent infestation in the dietary department, but they refused to
take any steps to address it. See Horton v. Sheriff of Cook County,
2012 WL 5838183, at *2 (N.D. Ill. Nov. 16, 2012)(extent of rodent
infestation which led to discovery of rodent in food is a factual
dispute that cannot be resolved on a motion to dismiss).
However, by itself, “one incident of finding rodent parts in a
meal, though most unfortunate, does not rise to the level of a
constitutional violation.” Jackson v. Lang, 2010 WL 3210762, at *1
(N.D. Ill. Aug.10, 2010) citing See George v. King, 837 F.2d 705, 707
(7th Cir.1988) (one incident of food poisoning in prison does not
state a § 1983 claim of a constitutional violation); see also Hadley v.
Dobucki, 1995 WL 364225, at *3 (7th Cir.1995)( “in a large food
operation as the prison dietary, oversights such as the presence of
crusted food or cigarette ashes on dining room fixtures and utensils
on occasion, or even ‘foreign objects’ in the food can be expected”);
Fountain v. Shaw, 2011 WL 4888874, at *5 (N.D. Ill. Oct. 13,
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2011)(court grants summary judgment noting finding mouse parts
in food on one occasion does not violate constitution); McRoy v.
Sheahan, 2004 WL 1375527, *3 (N.D.Ill. Jun.17, 2004)(“Even a
dead mouse in an inmate's meal is only a minimal deprivation
without a showing of injury”); Wassil v. Casto, 2014 WL 988479, at
*11 (S.D. W.Va. March 12, 2014)(“while the presence of a dead
rodent in Plaintiffs' food is revolting, this incident does not
objectively constitute a denial of the ‘minimal civilized measure of
life's necessities.’”)
Plaintiff alleges Defendants Dorethy, Henderson and
Windsteadt had “first-hand knowledge of the infestation of mice.”
(Comp, p. 10). Therefore, Plaintiff has alleged these three
Defendants violated his Eighth Amendment when they were
deliberately indifference to a substantial risk of harm. Plaintiff has
failed to articulate any other claim based on finding a bone in his
food.
Plaintiff also alleges Defendants Lindorff and Dr. Sood were
deliberately indifferent to his serious medical condition when they
sent him back to his cell. However, Plaintiff does not allege he
exhibited any symptoms besides an upset stomach in the Health
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Care Unit. Plaintiff provides copies of letters he claims to have sent
to Defendant Lindorff asking for medical care for his additional
symptoms. It is not clear whether the Defendant received those
letters, or whether Plaintiff requested medical care through the
appropriate institutional procedures, or even if Plaintiff suffered
from a serious medical condition. Nonetheless, for the purposes of
notice pleading, Plaintiff may proceed with his claim against
Defendant Lindorff. Plaintiff has not stated how Dr. Sood had any
further involvement with his claims beyond receiving a phone call
when Plaintiff first arrived at the Health Care Unit. Therefore, the
Court will dismiss Defendant Dr. Sood.
Plaintiff alleges Internal Affairs Officer Crouse knew he had
ingested a mouse, but the Defendant threated him with segregation
if Plaintiff did not change his story. Plaintiff does not allege he was
placed in segregation, nor that he received a disciplinary ticket.
And while Plaintiff alleged he found a mouse bone in his food,
Defendant Crouse told Plaintiff another inmate reported seeing
Plaintiff place the bone in his food. Therefore, the Defendant had
reason to investigate Plaintiff’s claims. Plaintiff has failed to

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articulate a constitutional violation based on Defendant Crouse’s
actions.
Plaintiff has also failed to state a specific claim against former
IDOC Director Baldwin. Plaintiff says he has named the director for
potential injunctive relief, but any potential relief is limited to Hill
Correctional Center and Plaintiff states Baldwin is no longer the
IDOC Director. Furthermore, “[r]uling against a prisoner on an
administrative complaint does not cause or contribute to the
violation.” George v Smith, 507 F.3d 605, 609-10 (7th Cir. 2007); see
also Dorn v Powers, 2011 WL 6890466 at 3 (S.D. Ill. Dec. 30, 2011)
(“The United States Court of Appeals for the Seventh Circuit
specifically has held that a denial of a prisoner’s grievance, even if
wrongful, is not a basis for a Section 1983 claim.”); Lampley v Buss,
2012 WL 464478 at 4 (N.D.Ind. Feb. 10, 2012)( denying a prisoner’s
formal grievance is not grounds for a §1983 violation). Therefore,
the Court will dismiss Defendant Baldwin.
IT IS THEREFORE ORDERED that:
1) Pursuant to its merit review of the complaint under 28
U.S.C. § 1915A, the Court finds the Plaintiff alleges: a)
Defendants Dorethy, Henderson and Windsteadt violated
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Plaintiff’s Eighth Amendment when they were deliberately
indifference to a substantial risk of harm; and 2) Defendant
Lindorff was deliberately indifferent to a serious medical
condition. The claim is stated against the Defendants in their
individual capacities only. Any additional claims shall not be
included in the case, except at the Court’s discretion on
motion by a party for good cause shown or pursuant to
Federal Rule of Civil Procedure 15.
2) This case is now in the process of service. Plaintiff is advised
to wait until counsel has appeared for Defendants before filing
any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be
denied as premature. Plaintiff need not submit any evidence
to the Court at this time, unless otherwise directed by the
Court.
3) The Court will attempt service on Defendants by mailing
each Defendant a waiver of service. Defendants have 60 days
from service to file an Answer. If Defendants have not filed
Answers or appeared through counsel within 90 days of the
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entry of this order, Plaintiff may file a motion requesting the
status of service. After Defendants have been served, the Court
will enter an order setting discovery and dispositive motion
deadlines.
4) With respect to a Defendant who no longer works at the
address provided by Plaintiff, the entity for whom that
Defendant worked while at that address shall provide to the
Clerk said Defendant's current work address, or, if not known,
said Defendant's forwarding address. This information shall be
used only for effectuating service. Documentation of
forwarding addresses shall be retained only by the Clerk and
shall not be maintained in the public docket nor disclosed by
the Clerk.
5) Defendants shall file an answer within 60 days of the date
the waiver is sent by the Clerk. A motion to dismiss is not an
answer. The answer should include all defenses appropriate
under the Federal Rules. The answer and subsequent
pleadings shall be to the issues and claims stated in this
Order. In general, an answer sets forth Defendants' positions.

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The Court does not rule on the merits of those positions
unless and until a motion is filed by Defendants. Therefore,
no response to the answer is necessary or will be considered.
6) Once counsel has appeared for a Defendant, Plaintiff need
not send copies of his filings to that Defendant or to that
Defendant's counsel. Instead, the Clerk will file Plaintiff's
document electronically and send a notice of electronic filing
to defense counsel. The notice of electronic filing shall
constitute service on Defendants pursuant to Local Rule 5.3.
If electronic service on Defendants is not available, Plaintiff
will be notified and instructed accordingly.
7) Counsel for Defendants is hereby granted leave to depose
Plaintiff at his place of confinement. Counsel for Defendants
shall arrange the time for the deposition.
8) Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing
address or phone number will result in dismissal of this
lawsuit, with prejudice.

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9) Within 10 days of receiving from Defendants’ counsel an
authorization to release medical records, Plaintiff is directed to
sign and return the authorization to Defendants’ Counsel.
IT IS FURTHER ORDERED THAT THE CLERK IS DIRECTED TO:
1) Dismiss Defendants Dr. Sood and Crouse for failure to
state a claim upon which relief can be granted pursuant to
§ 1915A; 2) Dismiss Plaintiff’s motion for a status update
as moot, [6]: 3) Attempt service on Defendants pursuant to
the standard procedures; 4) set an internal court deadline
60 days from the entry of this order for the court to check
on the status of service and enter scheduling deadlines;
and, 5) enter the Court's standard qualified protective
order pursuant to the Health Insurance Portability and
Accountability Act.
ENTERED: November 8, 2016
FOR THE COURT:

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

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