Riley-El et al v. State Of Illinois et al

Filing 121

MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 7/27/2015. Mailed notice(mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILLIAM RILEY-EL (B-3069)
Plaintiff,
v.
SALVADOR GODINEZ, et al.,
Defendants.

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No. 13 C 8656
Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER
Pro se prisoner William Riley-El filed suit pursuant to 42 U.S.C. § 1983 alleging
deliberate indifference to his serious medical needs and unconstitutional conditions of
confinement due to a high-soy diet that he claims is injurious to his health. Riley-El’s complaint
(which is eighty-two pages, including exhibits) names thirty-four defendants. Three groups of
defendants have filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6): (1) former
Stateville wardens Michael Lemke, Anthony Ramos, Terry McCann, Frank Shaw, and Deirdre
Battaglia and Illinois Department of Corrections (“IDOC”) Director Salvador Godinez (Dkt. 25)
(the “Lemke Motion to Dismiss”); (2) Suzann Bailey (Stateville’s dietary services
administrator), Marcus Hardy (another former Stateville warden), Thomas Keen (a member of
the Administrative Review Board), Louis Shicker (IDOC’s medical director), and former IDOC
directors Michael Randle and Gladyse Taylor (Dkt. 85) (the “Bailey Motion to Dismiss”); and
(3) former IDOC wardens Briley and Dominguez, joined by former IDOC warden James Sledge
(Dkt. 109) (the “Briley Motion to Dismiss”).
For the following reasons, the motions are granted in part and denied in part.
Specifically, to the extent detailed below, Riley-El may proceed with his Eighth Amendment
claims based on treatment provided for his kidney condition and the provision of a diet

containing soy despite his alleged soy allergy and the allegedly negative impact that a soycontaining diet has on his kidney condition. All of Riley-El’s deliberate indifference claims
based on the alleged general risks of a soy-based diet, in the absence of an allergy or a medical
condition for which soy is contraindicated, are dismissed. All claims against Godinez, Shicker,
Taylor, Randle, Sledge, and Bailey are dismissed pursuant to Fed. R Civ. P. 12(b)(6). All claims
against Walker are dismissed pursuant to Fed. R. Civ. P. 41(b). The remaining defendants shall
answer the complaint by August 17, 2015. The court sua sponte names Pontiac Correctional
Center Warden Randy Pfister as a defendant for the purposes of Riley-El’s claim for injunctive
relief, and the U.S. Marshal is appointed to serve Pfister. The court recruits counsel to represent
Riley-El in accordance with counsel’s trial bar obligations under the District Court’s Local Rule
83.37. A separate order recruiting counsel will follow.
I. BACKGROUND
Given Riley-El’s pro se status, the court will construe his filings liberally. See Ambrose
v. Roeckeman, 749 F.3d 615, 618 (7th Cir. 2014). The following facts are taken from Riley-El’s
complaint and will be accepted as true for the purposes of this motion. See Cincinnati Life Ins.
Co. v. Beyrer, 722 F.3d 939, 946 (7th Cir. 2013).
Riley-El challenges the soy-rich diet he allegedly receives as an inmate in IDOC custody.
He contends that he is given an average of eight servings of soy each week and that unless he
can purchase food from the commissary, his soy consumption exceeds 25 grams per day.
Compl. pp. 27, 29. He alleges that a high-soy diet is generally unhealthful and can lead to
thyroid disease, digestive ailments, and “immune system breakdown” that can cause an increased
incidence of colds and flu, cancer, and other chronic conditions. Id. p. 24.

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In 2011, Riley-El was diagnosed with polycystic kidney disease (“PKD”). According to
Riley-El, PKD is an inherited disorder in which clusters of cysts develop in the kidneys, with
high-blood pressure as a common complication. Riley-El blames his PKD on his consumption
of soy. First, he asserts that PKD is hereditary but no one in his family has PKD. He thus
reasons that consuming soy must have caused his PKD. Second, he represents that he is allergic
to soy.1 According to Riley-El, his soy allergy, combined with his ingestion of prescribed pain
relievers, caused him to develop PKD.
In addition, Riley-El challenges the care provided for his PKD. He alleges that he filed
numerous grievances over the years alleging that he was denied medical treatment for various
health problems. Id. p. 8. In July 2013, a doctor at UIC Medical Center told Riley-El that his
kidneys were functioning at 15 percent. Id. p. 10-11. Riley-El has had high blood pressure for
years, along with other symptoms of kidney disease, including rising creatinine levels (which
can indicate kidney damage), lower back pain, knee pain, headaches, nose bleeds, severe
stomach pain, irritable bowel syndrome, constipation and/or diarrhea, acne, and severe
headaches. Id. pp. 9-11, p. 27 at ¶ 44. Despite these complaints, he contends that he was not
sent for an in-person appointment with a specialist, although he also alleges that he saw “a
doctor over a television screen” in addition to the medical care he received at Stateville and
alleges elsewhere in his complaint that he saw a kidney specialist at UIC Medical Center in
2013. Id. pp. 10-11.

1

Riley-El’s complaint does not specify whether he was diagnosed with a soy allergy
after testing or whether he believes that he is allergic to soy based on symptoms that he has
experienced.
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Dr. Obaisi, the medical director at Stateville Correctional Center, prescribed Riley-El a
“renal diet” consisting of soy-based meat despite Riley-El’s soy allergy. Riley-El asked Dr.
Obaisi to prescribe a soy-free diet, but Dr. Obaisi told him that this is not an option at IDOC
facilities. Id. p. 11-12.
Riley-El also challenges care that Wexford and its employees (the “Medical
Defendants”) provided.2 He alleges generally that all of the Medical Defendants knew that he
had filed grievances about his high-soy diet (id. p. 33 at ¶ 80) and knew about his symptoms but
failed to provide appropriate medical treatment (id. p. 34 at ¶¶ 81, 82). Next, despite Riley-El’s
allegation that Dr. Obaisi told him that IDOC does not allow inmates to receive a soy-free diet,
he alleges that the Medical Defendants knew about the risks associated with a high-soy diet and
had the ability to prescribe an alternative diet, but failed to do so (id. ¶¶ 83-85). In addition, he
contends that Wexford’s purported official policy of allowing its physicians to prescribe
alternative diets for prisoners is inconsistent with its actual practice of refusing to allow its
physicians to do so. Id. ¶ 87.
Riley-El further contends that the Medical Defendants deliberately provided ineffective
medical treatment. He asserts that he should have been diagnosed with PKD earlier and that his
continued consumption of soy caused his health to be in a “deteriorated state.” (Id. p. 37 at
¶ 94.) He also alleges that his soy-rich diet is responsible for his current kidney function of 15

2

The Medical Defendants are Wexford Health Sources, Inc., Arthur Funk (identified as
Wexford’s regional administrator), Dr. Parthasarathi Ghosh (Stateville Correctional Center’s
former medical director), and Wexford doctors Lawrence Ngu, Andrew Tilden; Evaristo
Aguinaldo, Liping Zhang, Richard Shute, Catalino Bautista, S. Mahone, Ronald Schaefer,
Imhotep “Kevin” Carter, Saleh Obaisi, D. Davis, S. Baker, and Angela Richardson. The Medical
Defendants who have been served filed a motion for a more definite statement. The court has
denied that motion in a separate order issued contemporaneously with this opinion.
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percent. Id. p. 36 at ¶¶ 92-93. He further contends that he has not been provided with proper
treatment since his diagnosis with PKD. Id. ¶ 95.
After screening Riley-El’s complaint, the court allowed him to proceed with Eighth
Amendment claims of deliberate indifference to his serious medical needs and the alleged failure
to provide a nutritionally adequate diet. Additional facts will be discussed as necessary below.
II. LEGAL STANDARD
To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must “state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies this standard when its
factual allegations “raise a right to relief above the speculative level.” Twombly, 550 U.S. at
555-56. For purposes of a motion to dismiss, the court takes all facts alleged by the plaintiff as
true and draws all reasonable inferences from those facts in the plaintiff’s favor, although
conclusory allegations that merely recite the elements of a claim are not entitled to this
presumption of truth. Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).
III. DISCUSSION
A.

Riley-El’s Claim That a Soy-Based Diet Violates the Eighth Amendment Even in the
Absence of an Allergy or Medical Condition for Which Soy Is Contraindicated
Riley-El contends that even setting aside his alleged allergy to soy and his assertion that

his medical condition contraindicates the consumption of soy, the soy-rich diet given to IDOC
inmates violates the Eighth Amendment because it is generally unhealthy. All three groups of
defendants who filed motions to dismiss argue that Riley-El’s allegations about the generalized
risk of soy fail to state an actionable conditions of confinement claim.

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The Eighth Amendment entitles prisoners to humane conditions of confinement that
provide for their “basic human needs.” Rice v. Corr. Med. Servs., 675 F.3d 650, 664 (7th Cir.
2012) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). This includes “adequate food,
clothing, shelter, and medical care.” Sain v. Wood, 512 F.3d 886, 893 (7th Cir. 2008) (quoting
Farmer v. Brennan, 511 U.S. 825, 832 (1994)). However, the Eight Amendment neither requires
“the most intelligent, progress, humane, or efficacious prison administration,” Oliver v. Deen, 77
F.3d 156, 161 (7th Cir. 1996), nor demands that prison officials provide inmates with “more
salubrious air, healthier food, or cleaner water than are enjoyed by substantial numbers of free
Americans.” Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir. 2001). To state a claim for
unconstitutional conditions of confinement, Riley-El must adequately allege that: (1) he suffered
a sufficiently serious deprivation of a basic human need; and (2) the defendants acted with
deliberate indifference to his conditions of confinement. Sain, 512 F.3d at 893-94.
The defendants argue that Riley-El cannot establish a sufficiently serious deprivation
based on a soy-rich diet because a number of courts have rejected inmates’ claims that this type
of diet put them at a serious risk of harm. For example, in Harris v. Brown, No. 07 CV 3225,
2014 U.S. Dist. LEXIS 137870, at *12-13 (C.D. Ill. Sept. 30, 2014) (Baker, J.), a group of
prisoners claimed that excessively high amounts of soy in Illinois’ prison food threatened their
health. The court held that a risk violates the Eighth Amendment if it is “one that ‘society
considers . . . so grave that it violates contemporary standards of decency to expose anyone
unwillingly to such a risk.’” Id. (quoting Helling v. McKinney, 509 U.S. 25, 36 (7th Cir. 1993)).
Noting the ubiquitousness of soy in the American diet, as well as the fact that the government
allows food manufacturers to tout the benefits of soy on food labels, the court found that “society

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today simply does not see soy protein as a risk to the general population, must less a serious
risk.” Id. at *13-14. It then granted the defendants’ motion for summary judgment, explaining
that even if it accepted the opinions of the plaintiffs’ experts, the most that could be said was that
the “safety of soy is a topic of current debate and study,” which is not enough to establish an
Eighth Amendment violation. Id. at *12; see also Martin v. Scott, 156 F.3d 578, 580 (5th Cir.
1998) (per curiam) (holding that prisoner’s claim that he was subjected to cruel and unusual
punishment because he became ill after consuming a soy-based meat substitute “simply does not
rise to the level of cruel and unusual punishment”); Adams v. Talbor, No. 13-2221-JES-JAG,
2013 U.S. Dist. LEXIS 158632, at *5-7 (C.D. Ill. Nov. 6, 2013) (Shadid, J.) (dismissing
prisoner’s claim that soy-based diet caused him to experience stomach problems); Smith v.
Rector, No. 13-cv-837-GPM, 2013 U.S. Dist. LEXIS 140359, at *10-11 (S.D. Ill. Sept. 30, 2013)
(Murphy, J.) (dismissing claim based on “vague allegations” that prison meals contained too
much soy); Hong v. McNeil, No. 4:10cv155-SPM/WCS, 2012 U.S. Dist. LEXIS 19325, at
*15-16 (N.D. Fla. Jan. 6, 2012) (Sherill, J.) (recommending the grant of summary judgment to
prison officials, as the record contained no evidence that soy products caused harm, much less
that prison officials were indifferent to any risk of harm); Mitchell v. New York State Dep’t of
Corr. Servs., No. 6:06-CV-6278 (MAT), 2012 U.S. Dist. LEXIS 176209, at *35-36 (W.D.N.Y.
Dec. 12, 2012) (Telesca, J.) (dismissing as frivolous prisoner’s claim that a soy-based diet causes
cancer).
To state a claim for an Eighth Amendment violation, the challenged condition must
amount to an “extreme deprivation,” Hudson v. McMillan, 503 U.S. 1, 9 (1992), and “pose[] an
unreasonable risk of serious damage to [the inmate’s] future health,” Helling, 509 U.S. at 35.

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The plaintiff must also show that society has chosen not to tolerate the risk at issue. Helling, 509
U.S. at 36. Finally, the plaintiff must demonstrate that the defendants acted with a “sufficiently
culpable state of mind” in exposing him to the risk. Hudson, 503 U.S. at 8.
Riley-El’s allegations about the purported general unhealthfulness of soy appear to track
the allegations in Harris, 2014 U.S. Dist. LEXIS 137870. Indeed, Riley-El has included articles
relating to that lawsuit as exhibits to his complaint. However, as the cases collected above
demonstrate, the alleged risks posed by consuming a soy-rich diet do not rise to the level of an
Eighth Amendment violation. Therefore, Riley-El’s claim that the provision of a soy-based diet
is a condition of confinement that poses a substantial risk of serious harm is dismissed.
Alternatively, the court finds that defendants would be entitled to qualified immunity as
to any claim based on the alleged general health risks of consuming soy. Qualified immunity
shields government officials from liability where “their conduct does not violate ‘clearly
established statutory or constitutional rights of which a reasonable person would have known.’”
Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir. 2013) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). Courts use a two-part test to determine whether a defendant is entitled to
qualified immunity: “(1) whether the facts, viewed in a light most favorable to the injured party,
demonstrate that the conduct of the [defendants] violated a constitutional right, and (2) whether
that right was clearly established at the time the conduct occurred.” Id. at 743 (citing Pearson v.
Callahan, 555 U.S. 223, 232 (2009)). A court has discretion to consider either element of the
test first. Pearson, 555 U.S. at 236.
Qualified immunity can be the basis of a Rule 12(b)(6) dismissal when the allegations of
the complaint, taken as true, fail to allege the violation of a clearly established constitutional

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right. McGreal v. AT&T Corp., 892 F. Supp. 2d 996, 1012 (N.D. Ill. 2012); see Doe v. Vill. of
Arlington Heights, 782 F.3d 911, 916 (7th Cir. 2015). The plaintiff has the burden of
establishing that the constitutional right at issue was clearly established at the time of the events
alleged in his complaint. Doe, 782 F.3d at 915. Although a plaintiff need not cite to a case that
is directly on point, he must demonstrate either that a court has upheld the purported right in a
factually similar case or that the alleged misconduct constituted an obvious violation of a
constitutional right. Id. (citing Lunini v. Grayeb, 395 F.3d 761, 769 (7th Cir. 2005)).
The court has reviewed numerous cases brought by prisoners who challenged the soy
content of the diets they received while in custody. It has not found cases concluding that
soy-based diets pose a serious risk to the health of prisoners absent an allergy or another
condition for which soy is contraindicated. Similarly, it has not found cases holding that soy is
either generally nutritionally inadequate or is harmful when ingested over a threshold amount.
Nor has Riley-El cited any such cases. Given the absence of precedent finding that it is
unconstitutional to provide inmates with a soy-based diet if soy is not medically contraindicated,
no defendant would be on notice that providing such a diet violates an inmate’s rights. See
Munson v. Gaetz, 957 F. Supp. 2d 951, 954 (S.D. Ill. 2013). For this second reason, Riley-El
cannot proceed with his claim that the defendants were deliberately indifferent to the alleged
generalized risks of a soy-based diet.
B.

Riley-El’s Claim That a Soy-Based Diet Violates the Eighth Amendment Because He
is Allergic and Has Medical Conditions for Which Soy Is Contraindicated
Although the provision of a soy diet, as a general matter, does not violate the Eighth

Amendment, it may still amount to cruel and unusual punishment if a plaintiff has a serious
medical condition for which soy is contraindicated. See Harris, 2014 U.S. Dist. LEXIS 137870,
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at *16; see also Munson v. Shearing, No. 15-cv-00062-MJR, 2015 U.S. Dist. LEXIS 9123, at
*2-8 (S.D. Ill. Jan. 27, 2015) (Reagan, J.) (allowing prisoner to proceed with claim that prison
officials subjected him to unconstitutional conditions of confinement because they refused to test
him for a soy allergy or provide an alternative diet).
Riley-El alleges that he is allergic to soy and has experienced a facial rash, acne, elevated
blood pressure, abdominal pain, and diarrhea as a result of consuming soy. Id. at pp. 10-11,
Compl. Ex. 3 at pp. 52-53. In a grievance attached to his complaint, Riley-El alleges that
following his diagnosis with PKD – which appears to be a serious medical condition – an outside
physician told him to reduce his soy intake and to eat more green vegetables. Compl. Ex. 2 at
pp. 44-45. At the motion to dismiss stage, the court cannot and will not determine if
disregarding this advice violates the Eighth Amendment. But for present purposes, the court
accepts Riley-El’s allegation that a doctor told him to reduce his intake of soy due to his PKD.
The court notes, however, that Riley-El’s contention that his PKD was caused by a
combination of an allergic reaction to soy and the effects of prescription pain medication appears
to be speculative. The same can be said for his claim that eating soy despite his soy allergy
caused him to develop hypertension. Nevertheless, Riley-El alleges that he is consuming too
much soy in light of his current health conditions, including PKD. His abdominal pain, diarrhea,
and facial rash could plausibly be the result of a soy allergy. Riley-El alleges that he brought
these concerns to the attention of the defendant prison officials, who failed to act.
A more fully developed record may belie Riley-El’s claim that his diet exacerbates his
alleged soy allergy or medical conditions in a way that creates an unreasonable risk of serious
damage to his health. However, his allegations about the effect of consuming soy in light of his

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soy allergy and PKD are sufficient to survive a motion to dismiss. These claims may proceed
against the defendants specified below.
C.

Allegations About the Defendants’ Personal Involvement
Section 1983 liability is predicated on fault, so to be liable, a defendant must be

“personally responsible for the deprivation of a constitutional right.” Sanville v. McCaughtry,
266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th
Cir. 2001)). “A defendant will be deemed to have sufficient personal responsibility if he
directed the conduct causing the constitutional violation, or if it occurred with his knowledge or
consent.” Ames v. Randle, 933 F. Supp. 2d 1028, 1037-38 (N.D. Ill. 2013) (quoting Sanville, 266
F.3d at 740). To be held liable for the conduct of their subordinates, supervisors must “know
about the [unconstitutional] conduct and facilitate it, approve it, condone it, or turn a blind eye
for fear of what they might see.” T.E. v. Grindle, 599 F.3d 583, 588 (7th Cir. 2010) (quoting
Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988)).
The Eighth Amendment requires prison officials to provide humane conditions of
confinement, including a nutritionally adequate diet and adequate medical care. See, e.g.,
Farmer, 511 U.S. at 832. Riley-El alleges that his diet and medical care were inadequate. To
state a valid Eighth Amendment claim, Riley-El must allege facts that, if true, would establish
that: (1) he suffered an objectively serious deprivation; and (2) each defendant acted with
deliberate indifference to that deprivation. Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir.
2008). “Deliberate indifference . . . means that the official knew that the inmate faced a
substantial risk of serious harm, and yet disregarded that risk by failing to take reasonable
measures to address it.” Id.; see also Farmer, 511 U.S. at 837 (deliberate indifference has an

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objective and a subjective element: the inmate must have an objectively serious medical
condition, and the defendant must be subjectively aware of and consciously disregard the
inmate’s medical need).
Generally, when a prisoner is under the care of a physician, a non-medical defendant,
such as a warden, may rely on the expertise of medical personnel. Arnett v. Webster, 658 F.3d
742, 750 (7th Cir. 2011); see also Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (a prison
warden is “entitled to relegate to the prison’s medical staff the provision of good medical care”).
However, “non-medical officials can ‘be chargeable with deliberate indifference’ where they
have reason to believe (or actual knowledge) that prison doctors are mistreating (or not treating)
a prisoner.’” Arnett, 658 F.3d at 755 (quoting Hayes v. Snyder, 546 F.3d 516, 525 (7th Cir.
2008)).
The court will discuss Riley-El’s allegations about the defendants’ personal involvement
by considering the three motions to dismiss in turn.
1.

The Lemke Defendants

Lemke, Ramos, McCann, Shaw, and Battaglia are former wardens of Stateville
Correctional Center, and defendant Godinez is IDOC’s former director. As discussed below,
Riley-El has sufficiently alleged the personal involvement of Lemke, Ramos, McCann, Shaw,
and Battaglia but not Godinez.
a.

Lemke, Ramos, McCann, Shaw, and Battaglia

Riley-El has grouped his allegations against former Stateville wardens Lemke, Ramos,
McCann, Shaw, and Battaglia together. He alleges that these defendants were responsible for
resolving inmate grievances and that they rejected his grievances requesting an soy-free diet and

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medical treatment. According to Riley-El, each of these defendants knew that he had
complained that his soy-containing diet was causing him injury, knew that the diet was
potentially harmful to him given his soy allergy and medical condition, and had the authority to
provide him with an alternative diet but failed to do so. Riley-El also generally alleges that he
has not received adequate and necessary treatment for his serious medical needs. In response,
Lemke, Ramos, McCann, Shaw, and Battaglia argue that Riley-El’s claims against them are
premised on their status as high-ranking IDOC officials, rather than personal responsibility for
an alleged violation of his rights.
Although not every person who receives a complaint of an alleged constitutional
violation is liable under § 1983, see Burks, 555 F.3d 595, Lemke, Ramos, McCann, Shaw, and
Battaglia are not merely public officials. Given their positions as warden and their alleged
responsibility to oversee the grievance resolution process, it is reasonable to infer that they could
be aware of Riley-El’s grievances and could have investigated his complaints or intervened. A
more fully developed record may demonstrate that these defendants were not, in fact, involved in
resolving Riley-El’s grievances and could not have known about them. The court also observes,
as it did in relation to the Medical Defendants’ motion for a more definite statement, that the
sprawling nature of Riley-El’s complaint, which challenges medical care he received starting in
2005, means that some of his claims may be time-barred. However, the statute of limitations is
an affirmative defense, and the court cannot determine its applicability based on the present
record.
Accordingly, Riley-El has adequately alleged that Lemke, Ramos, McCann, Shaw, and
Battaglia were aware, through his grievances, that he claimed that he was receiving a medically

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inappropriate diet and inadequate treatment for serious medical needs, including PKD and
elevated blood pressure, but failed to respond reasonably. The motion to dismiss based on these
defendants’ alleged lack of personal involvement is denied.
b.

Godinez

In his lengthy complaint, Riley-El does not allege that Godinez was personally involved
in the denial of medical care or a soy-free diet. Riley-El’s only mention of Godinez appears to
be his allegation that Godinez is the “Director of an administrative agency of the State” that is
responsible for administering Illinois’ prisons. Compl. p. 13 at ¶ 3. Accordingly, Riley-El’s
claims against Godinez are dismissed.
2.

The Bailey Defendants

The next group of defendants consists of Suzann Bailey (Stateville’s dietary services
administrator), Marcus Hardy (another former Stateville warden), Thomas Keen (a member of
the Administrative Review Board), Louis Shicker (IDOC’s medical director), and former IDOC
directors Michael Randle and Gladyse Taylor.
a.

Riley-El’s Response to the Bailey Motion to Dismiss

In his response to the Bailey motion to dismiss, Riley-El asserts that “some of [the
Bailey] defendants reviewed [and] denied grievances relating to medical treatment submitted by
Plaintiff.” Pl.’s Resp., Dkt. No. 107, at 2. This assertion does not appear in Riley-El’s lengthy
complaint. It is improper to amend a complaint via a response to a motion to dismiss. See
Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 348 (7th Cir. 2012). In any event, even
if this assertion about actions taken by “some” of the Bailey defendants was properly before the
court, it does not support the inference that Bailey, Hardy, Keen, Shicker, Randle, and Taylor

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each denied grievances about Riley-El’s medical care. See Twombly, 550 U.S. at 555-56. This
is especially true given that this group of defendants includes individuals who do not appear to
be involved in the grievance process, such as Bailey (Stateville’s dietary services administrator)
and Shicker (IDOC’s medical director).
While the court will construe Riley-El’s complaint liberally, it will not and cannot craft
factual allegations for him. Riley-El is no stranger to prisoner civil rights cases as the court’s
records reflect that he has filed ten prisoner civil rights cases in this district. To the extent that
Riley-El wishes to provide more detailed factual allegations directed at specific defendants, he
must file a motion seeking leave to amend his complaint that contains this information. Hence,
the court will not consider the assertion about “some” of the Bailey defendants made in RileyEl’s response when evaluating the sufficiency of the allegations in the complaint directed at the
Bailey defendants.
b.

Bailey

Riley-El describes Bailey as IDOC’s dietary services administrator. Based on the IDOC
website, he alleges that Bailey served on a committee that planned a master menu for IDOC that
started in 2004 and that she consults with dietary and prison staff at IDOC facilities concerning
inmate’s diets. Compl. p. 15 at ¶ 7. Riley-El’s complaint contains no indication that Bailey had
any personal involvement with his request for an alternative diet or his grievances about his diet
and medical care. As Riley-El’s claims against Bailey appear to be based on her overall
responsibility for the menu served at IDOC facilities, the claims against her are dismissed.
c.

Hardy

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Hardy is a former warden at Stateville. As with the other former wardens discussed
above (Lemke, Ramos, McCann, Shaw, and Battaglia), assuming that the statute of limitations
does not bar Riley-El’s claim against Hardy, it is reasonable to infer that Hardy could be aware
of Riley-El’s grievances and could have intervened or at least investigated his complaints.
Riley-El may proceed with his claims against Hardy.
d.

Keen

Riley-El alleges that Keen is a member of the Administrative Review Board and that he
was responsible for reviewing and investigating his grievances. Compl. p. 16, 9. Accepting
these allegations as true, Keen “presumably personally reviewed and investigated the complaint
prior to denying [Riley-El’s] request and therefore was likely aware of the prison doctors’ failure
to provide [Riley-El] with adequate medical care.” See Foster v. Ghosh, No. 11 C 5623, 2013
U.S. Dist. LEXIS 100958, at *13-14 (N.D. Ill. July 19, 2013). This is sufficient to allow the
court to infer that Keen “was personally involved and aware of the constitutional deprivation.”
Id. Discovery is necessary to flesh out any actions Keen may have taken with respect to RileyEl’s grievance but Riley-El’s claim against Keen is sufficient to survive a motion to dismiss.
e.

Shicker

Riley-El alleges that Shicker is IDOC’s medical director. In his complaint, Riley-El
references IDOC’s website, which – according to Riley-El – states that Shicker is responsible for
setting standards for the delivery of inmate healthcare, evaluating the preventative, public,
mental health, primary, and secondary care provided to inmates in IDOC custody, and the
policies and procedures governing the provision of care at IDOC facilities. Elsewhere, Riley-El
generally alleges that groups of defendants, including Shicker, knew about his soy allergy and

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his complaints about his care. Even construed generously, there is no discernable basis for
drawing an inference that Shicker was aware of Riley-El’s soy allergy, soy-containing diet, and
medical situation.
Moreover, Riley-El’s only specific allegations about Shicker relate to his responsibilities
as IDOC’s medical director, and none of these responsibilities have any discernable connection
to Riley-El’s specific situation. The bald allegation that Shicker knew about Riley-El’s medical
status and care and was involved in denying him the treatment and soy-free diet that Riley-El
sought is, therefore, speculative. See Twombly, 550 U.S. at 555-56. A “plaintiff must give
enough details about the subject-matter of the case to present a story that holds together.”
Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). Riley-El’s allegations about
Shicker fail to meet this standard so his claims against Shicker are dismissed.
f.

Randle and Taylor

Randle and Taylor appear only in the introductory section of Riley-El’s complaint where
he lists the defendants and their titles. Riley-El alleges that Randle and Taylor are former
directors of IDOC and describes them (and multiple other defendants) as “state agency”
defendants. Compl. pp. 2 and 13 at ¶ 3. As with Shicker, Riley-El’s blanket assertions later in
the complaint to the effect that all of the defendants were involved in the denial of medical care
and a soy-free diet are speculative. See Twombly, 550 U.S. at 555-56; Swanson, 614 F.3d at 404.
The claims against Randle and Taylor are dismissed.
3.

The Briley Defendants

The Briley defendants consist of Briley and Dominguez (former wardens of Stateville)
and Sledge, the director of Central Management Services for the State of Illinois.

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a.

Briley and Dominguez

The above discussion about the other warden defendants applies equally to Briley and
Dominguez. Riley-El has adequately stated a claim against these defendants.
b.

Sledge

Riley-El’s allegations about Sledge are based on information from the Central
Management Services website. Riley-El alleges that Sledge is employed by an entity that is
responsible for procuring food products that are given to IDOC inmates. Compl. p. 13-14 at ¶ 4.
Riley-El does not contend that Sledge was personally involved in the alleged deprivation of his
rights. There is no discernable basis to infer that Sledge would play any role in reviewing inmate
complaints or grievances so Sledge’s role in the IDOC food procurement chain cannot amount to
a constitutional violation. Therefore, the claims against Sledge are dismissed.
D.

Riley-El’s Request for Injunctive Relief
In his complaint, Riley-El seeks an injunction requiring state officials to provide him

with a soy-free diet and treatment by a renal specialist.3 Compl. p. 38. At the time he submitted
his complaint, Riley-El was housed at Stateville Correctional Center; he has since been
transferred to Pontiac Correctional Center. All of the defendants contend that Riley-El’s claims
for injunctive relief are moot as a result of his transfer. No officials from Pontiac Correctional
Center are named as defendants.

3

Riley-El seeks additional injunctive relief, such as an order prohibiting IDOC from
serving soy-containing food to inmates. As the court has dismissed Riley-El’s claim that a diet
containing soy-containing food is unconstitutional barring an allergy or a medical condition that
contraindicates soy, the court will not discuss his corresponding requests for injunctive relief.
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If a prisoner who seeks injunctive relief for a condition specific to a particular prison is
transferred, the prisoner’s claim becomes moot. See Lehn v. Holmes, 364 F.3d 862, 871 (7th Cir.
2004). In his response brief, Riley-El contends that he is still being served a soy-based diet
despite the move to Pontiac.4 Because the soy-based diet is not a condition particular to
Stateville, Riley-El’s claims are not moot.
However, since Riley-El is now housed at Pontiac, he has not named a proper defendant
for his claim for injunctive relief. The court takes judicial notice that the current warden at
Pontiac is Randy Pfister. Pfister is a proper defendant for Riley-El’s request for injunctive relief.
See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). On its own motion, Pfister is
added as a defendant. The court appoints the U.S. Marshal to effect service on Pfister.
E.

Roger Walker
Roger Walker is an IDOC director. On April 24, 2015, the court directed Riley-El to

return a service form for Walker, who had not yet been served, within 28 days if he wished to
proceed with his claims against this defendant and stated “[i]f no service form is returned, this
Defendant will be dismissed for failure to prosecute pursuant to Fed. R. Civ. P. 41(b).” Dkt.
119. It is now three months later and Riley-El has not returned the service form. Thus, the
claims against Walker are dismissed for want of prosecution. See Fed. R. Civ. P. 41(b).

4

A motion to dismiss based on the contention that the plaintiff’s claim is moot is based
on Rule 12(b)(1). See Fed. R. Civ. P. 12(b)(1). The court may consider matters outside the
complaint when ruling on a Rule 12(b)(1) motion. See, e.g., Seebach v. Beetling Design Corp.,
46 F. Supp. 3d 876 (E.D. Wis. 2014). Thus, the contentions in Riley-El’s response are properly
before the court.
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F.

Recruitment of Counsel
The court may, in the exercise of its discretion, recruit counsel to represent indigent

litigants. Dewitt v. Corizon, Inc., 760 F.3d 654, 657 (7th Cir. 2014) (citing 28 U.S.C.
§ 1915(e)(1)). Certain key facts, such as the last dates of employment of defendants who no
longer work at Stateville, the basis for Riley-El’s belief that he is allergic to soy, and the nature
of any treatment provided for Riley-El’s kidney condition, would be better developed with the
assistance of counsel; a prompt inquiry into these issues will likely streamline this case.
Moreover, the court’s concerns about Riley-El’s claim that a diet containing soy was
unconstitutional, even in the absence of an allergy or other contraindication, was a basis for the
court’s previous denial of Riley-El’s motion for attorney assistance. That claim is no longer
pending.5
Accordingly, the court sua sponte recruits counsel to represent Riley-El in accordance
with counsel’s trial bar obligations under the District Court’s Local Rule 83.37. A separate order
recruiting counsel will follow. By October 9, 2015, counsel shall either file an amended
complaint or advise the court that he/she cannot do so. If counsel believes that filing an
amended complaint would be inconsistent with his/her Rule 11 obligations, any motion to
withdraw must provide a detailed list of investigatory steps taken by counsel.

5

The court previously questioned whether counsel should be recruited in light of RileyEl’s claim that consuming soy and ingesting prescribed pain relievers caused him to develop
PKD. This claim is based on Riley-El’s assertions that PKD is hereditary and that none of his
relatives have PKD; this led Riley-El to conclude that soy must be responsible. Counsel should
investigate and determine if this claim is potentially meritorious.
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IV. CONCLUSION
The defendants’ motions to dismiss [25], [85], and [109] are granted in part and denied in
part. Riley-El’s claims that the defendants were deliberately indifferent to the generalized risks
of a soy-based diet, in the absence of an allergy or medical condition for which soy is
contraindicated, are dismissed. All claims against Godinez, Shicker, Taylor, Randle, Sledge, and
Bailey are dismissed pursuant to Fed. R Civ. P. 12(b)(6). The claims against Walker are
dismissed pursuant to Fed. R. Civ. P. 41(b). The remaining defendants shall answer the
complaint by August 17. 2015. The court sua sponte names Pontiac Correctional Center Warden
Randy Pfister as a defendant for the purposes of Riley-El’s claim for injunctive relief. The U.S.
Marshal is appointed to serve Pfister. The Clerk is directed to issue summonses for service on
Pfister and to send Riley-El a blank USM-285 form along with a copy of this order. The court
advises Riley-El that a completed USM-285 form is required to serve Pfister. The U.S. Marshal
will not attempt to serve Pfister unless and until the required form is received. The court
recruits counsel to represent Riley-El in accordance with counsel’s trial bar obligations under
the District Court’s Local Rule 83.37. A separate order recruiting counsel will follow. By
October 9, 2015, counsel shall either file an amended complaint or advise the court that he/she
cannot do so and file a motion as detailed in this opinion. A status hearing is set for October 16,
2015 at 9:30 a.m.

Date: July 27, 2015

/s/
Joan B. Gottschall
United States District Judge

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