Jefferson v. Fenoglio et al

Filing 12

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. IT IS HEREBY ORDERED that COUNT 1B fails to state a claim upon which relief may be granted and is DISMISSED, without prejudice. IT IS FURTHER ORDERED that COUNT 2 fails to state a claim u pon which relief may be granted and is DISMISSED, with prejudice. Defendants RYKER, MORAN, and DENSMORE are DISMISSED from this action, with prejudice. IT IS FURTHER ORDERED that, as to the claim in COUNT 1A, the Clerk of Court shall prepare for Defendant FENOGLIO: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Judge Michael J. Reagan on 6/26/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WALTER JEFFERSON, # B-31401,
Plaintiff,

vs.
DR. FENOGLIO, WARDEN
RYKER, PAMELA MORAN, and
DIETARY MANAGER DENSMORE,
Defendants.

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Case No. 3:11-cv-489-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Walter Jefferson, an inmate in Lawrence Correctional Center
(“Lawrence”), brings this action for deprivations of his constitutional rights pursuant to
42 U.S.C. § 1983. This case is now before the Court for a preliminary review of the
complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
28 U.S.C. § 1915A.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon
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which relief can be granted if it does not plead “enough facts to state a claim to relief
that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Conversely, a complaint is plausible on its face “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Although the
Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d
418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that
they fail to provide sufficient notice of a plaintiff’s claim. Brooks v. Ross, 578 F.3d 574,
581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate abstract
recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, the factual allegations of a pro se complaint are to be liberally
construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.
2009).
Upon careful review of the complaint and any supporting exhibits, the Court finds
it appropriate to exercise its authority under § 1915A; portions of this action are subject
to summary dismissal.
The Complaint
Plaintiff alleges that, while he was incarcerated at Lawrence, Defendants
Fenoglio, Ryker, Moran and Densmore conspired to deny him medical care. On an
unknown date, Plaintiff requested a thyroid blood test from Defendant Fenoglio (the
prison doctor), who refused to administer the test (Doc. 1, p. 5). Plaintiff complained
that the “soy diet in place make[s] him extremely sick,” citing “classic symptoms of
Hypothyroidism: brainfog, memory loss, low body temperature, cold all the time” (Doc.

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1-1, p. 1). After the test was refused, Plaintiff further complained to nurses who “told
[him] to drink more water” (Doc. 1, p. 5).
Eventually, on June 30, 2010, Plaintiff filed a grievance stating that he wanted a
soy-free diet and “the correct medical care to address [his] thyroid medical problems”
(Doc. 1-1, p. 1). On August 17, 2010, Defendant Moran (the grievance officer) reviewed
Plaintiff’s grievance and recommended that it be denied (Doc. 1-1, p. 3). Defendant
Warden Ryker reviewed and signed Defendant Moran’s recommendation the next day
(Doc. 1-1, p. 3). Defendant Moran also stated in her recommendation that Plaintiff
could ask to see the doctor “at any time” and that “the doctor will determine [any] need
for tests and/or special diet” (Doc. 1-1, p. 3). On September 29, 2010, Plaintiff’s
grievance was ruled to have no merit by the Administrative Review Board of the Illinois
Department of Corrections (Doc. 1-1, p. 4).
Plaintiff has requested compensatory damages of $1 million for the “damage to
[his] body from consuming the soy diet” (Doc. 1, p. 6).
Discussion
Based on the allegations of the complaint, the Court finds it convenient to divide
the pro se action into two (2) counts. The parties and the Court will use these
designations in all future pleadings and orders, unless otherwise directed by a judicial
officer of this Court. The designation of these counts does not constitute an opinion as
to their merit.

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Count 1 – Deliberate Indifference to Medical Needs
Generally, an inmate’s dissatisfaction with the medical care he receives in prison
does not state a constitutional claim for deliberate indifference to medical needs, even if
the quality of care was substandard to the point of negligence or malpractice. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Sanville v. McCaughtry, 266 F.3d 724, 734 (7th Cir.
2001); Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996). However, in certain
instances, a constitutional claim may lie if a prison official’s actions amount to a failure
to treat a serious medical condition.
To prevail on an Eighth Amendment claim, a plaintiff must show that the
responsible prison officials were deliberately indifferent to his serious
medical needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Dunigan ex rel. Nyman v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir.
1999). Deliberate indifference involves a two-part test. The plaintiff must
show that (1) the medical condition was objectively serious, and (2) the
state officials acted with deliberate indifference to his medical needs,
which is a subjective standard.
Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000). However, the Supreme Court
stressed that this test is not an insurmountable hurdle for inmates raising Eighth
Amendment claims:
[A]n Eighth Amendment claimant need not show that a prison official acted
or failed to act believing that harm actually would befall an inmate; it is
enough that the official acted or failed to act despite his knowledge of a
substantial risk of serious harm . . . . Whether a prison official had the
requisite knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from circumstantial
evidence . . . and a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.
Farmer, 511 U.S. at 842.
The Seventh Circuit considers the following to be indications of a serious
medical need: (1) where failure to treat the condition could “result in further significant

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injury or the unnecessary and wanton infliction of pain;” (2) “[e]xistence of an injury that
a reasonable doctor or patient would find important and worthy of comment or
treatment;” (3) “presence of a medical condition that significantly affects an individual’s
daily activities;” or (4) “the existence of chronic and substantial pain.” Gutierrez v.
Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). In addition, a condition that is so obvious
that even a lay person would easily recognize the necessity for a doctor’s attention is
also considered a “serious” medical need. Id.
A. Thyroid Blood Test
The Seventh Circuit has found that an Eighth Amendment claim may be stated
where a prison doctor persists in a course of treatment known to be ineffective, fails to
order further testing or refuses to refer the inmate to a specialist. Greeno v. Daley, 414
F.3d 645, 655 (7th Cir. 2005) (doctor continued ineffective treatment, and refused to
order endoscopy or specialist referral over a two-year period during which plaintiff
suffered from ulcer); Kelley v. McGinnis, 899 F.2d 612, 616-17 (7th Cir. 1990) (inmate
may prevail if he can prove that defendant “deliberately gave him a certain kind of
treatment knowing that it was ineffective” (citing Estelle v. Gamble, 429 U.S. 97, 104
n.10 (1976))).
Defendant Fenoglio’s failure to order a thyroid blood test may constitute a claim
for deliberate indifference to a medical need under the Eighth Amendment. Plaintiff
alleges that he presented Defendant Fenoglio with the following symptoms: memory
loss, low body temperature, and “brainfog,” but that Defendant Fenoglio failed to treat or
attempt to diagnose what Plaintiff believes could be evidence of a serious thyroid or
other medical condition. To determine whether or not Defendant Fenoglio was

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deliberately indifferent, the Court must apply the two-part test laid out in Sherrod. See
Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000).
First, the Court must determine whether the symptoms alleged in the complaint
by Plaintiff constitute an objectively serious medical need. Memory loss and change in
body temperature could plausibly constitute “medical condition[s] that significantly affect
an individual’s daily activities.” See Gutierrez, 111 F.3d at 1373. Additionally, the
symptoms described by Plaintiff could suggest the presence of a serious thyroid
problem. Second, Defendant Fenoglio must be found to have knowledge of a
substantial risk of serious harm. See Farmer, 511 U.S. at 842. This is a question that
cannot be answered at the threshold stage of the litigation; however, Plaintiff has
pleaded sufficient facts from which Defendant Fenoglio’s subjective knowledge of a
serious risk could be inferred. See id. Therefore, the claim that Defendant Fenoglio
was deliberately indifferent to Plaintiff’s medical need in failing to order a thyroid blood
test shall receive further review.
B. Soy-Free Diet
Plaintiff has not pleaded sufficient facts to suggest that Defendant Fenoglio’s
refusal to prescribe a soy-free diet constitutes an Eighth Amendment violation.
Specifically, Plaintiff does not provide any facts or allegations that would suggest he
suffered from a serious medical need as a result of eating foods containing soy. Plaintiff
claims that his consumption of soy is directly linked with his memory loss, etc. This link
is simply too attenuated (in the absence of any evidence) to suggest that Defendant
Fenoglio should have been aware that serious harm might result if Plaintiff continued to
ingest soy. Therefore, Plaintiff has failed to state sufficient facts to support a claim that

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Defendant Fenoglio was deliberately indifferent to Plaintiff’s medical needs by refusing
to prescribe a soy-free diet; therefore, this claim shall be dismissed, without prejudice.
Although Plaintiff’s claim regarding soy is dismissed as an independent claim, the Court
recognizes that evidence of regarding soy may be tangentially relevant to Plaintiff’s
claim against Dr. Fenoglio for failing to give Plaintiff a blood test.
Count 2 - Conspiracy
Civil conspiracy claims are cognizable under § 1983. See Lewis v. Washington,
300 F.3d 829, 831 (7th Cir. 2002) (recognizing conspiracy claim under § 1983). “[I]t is
enough in pleading a conspiracy merely to indicate the parties, general purpose, and
approximate date . . . .” Walker v. Thompson, 288 F.3d 1005, 1007-08 (7th Cir. 2002).
See also Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003); Tierney v. Vahle, 304
F.3d 734, 740 (7th Cir. 2002). However, conspiracy is not an independent basis of
liability in §1983 actions. See Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008);
Cefalu v. Vill. of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000). “There is no
constitutional violation in conspiring to cover-up an action which does not itself violate
the Constitution.” Hill v. Shobe, 93 F.3d 418, 422 (7th Cir. 1996).
Plaintiff alleges that Defendants Ryker, Moran and Densmore conspired to deny
Plaintiff a soy-free diet. However, Defendant Fenoglio’s refusal to prescribe a soy-free
diet does not violate the Eighth Amendment. Further, even if the denial of a soy-free
diet were to amount to a cognizable claim under the Eighth Amendment, Plaintiff has
not stated any facts that would suggest Defendants Ryker, Moran and Densmore were
involved in a conspiracy. Plaintiff alleges only that Defendant Moran recommended the

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denial of his grievance, and that Defendant Ryker made the final decision denying the
grievance.
The denial of a grievance does not, by itself, warrant a claim of conspiracy.
Prison grievance procedures are not constitutionally mandated and thus do not
implicate the Due Process Clause per se. As such, the alleged mishandling of
grievances “by persons who otherwise did not cause or participate in the underlying
conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). See
also Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir. 2008); George v. Smith,
507 F.3d 605, 609 (7th Cir. 2007); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.
1996). Furthermore, Plaintiff does not allege that Defendant Densmore was involved at
all in the grievance process or Defendant Fenoglio’s decision-making. Therefore, this
claim and Defendants Ryker, Moran and Densmore shall be dismissed with prejudice.
Disposition
IT IS HEREBY ORDERED that COUNT 1B fails to state a claim upon which
relief may be granted and is DISMISSED, without prejudice.
IT IS FURTHER ORDERED that COUNT 2 fails to state a claim upon which relief
may be granted and is DISMISSED, with prejudice. Defendants RYKER, MORAN, and
DENSMORE are DISMISSED from this action, with prejudice.
IT IS FURTHER ORDERED that, as to the claim in COUNT 1A, the Clerk of
Court shall prepare for Defendant FENOGLIO: (1) Form 5 (Notice of a Lawsuit and
Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of
Summons). The Clerk is DIRECTED to mail these forms, a copy of the complaint, and
this Memorandum and Order to Defendant’s place of employment as identified by

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Plaintiff. If Defendant fails to sign and return the Waiver of Service of Summons (Form
6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take
appropriate steps to effect formal service on Defendant, and the Court will require
Defendant to pay the full costs of formal service, to the extent authorized by the Federal
Rules of Civil Procedure.
IT IS FURTHER ORDERED that, if the Defendant cannot be found at the
address provided by Plaintiff, the employer shall furnish the Clerk with the Defendant’s
current work address, or, if not known, the Defendant’s last-known address. This
information shall be used only for sending the forms as directed above or for formally
effecting service. Any documentation of the address shall be retained only by the Clerk.
Address information shall not be maintained in the court file, nor disclosed by the Clerk.
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendant (or upon
defense counsel once an appearance is entered), a copy of every further pleading or
other document submitted for consideration by the Court. Plaintiff shall include with the
original paper to be filed a certificate stating the date on which a true and correct copy
of any document was served on Defendant or counsel. Any paper received by a district
judge or magistrate judge that has not been filed with the Clerk or that fails to include a
certificate of service will be disregarded by the Court.
Defendant is ORDERED to timely file an appropriate responsive pleading to the
complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Stephen C. Williams for further pre-trial proceedings.
Further, this entire matter is hereby REFERRED to United States Magistrate

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Judge Williams for disposition, as contemplated by Local Rule 72.2(b)(2) and 28
U.S.C. § 636(c), should all the parties consent to such a referral.
IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff, and the
judgment includes the payment of costs under Section 1915, Plaintiff will be required to
pay the full amount of the costs, notwithstanding that his application to proceed in forma
pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28 U.S.C. §
1915 for leave to commence this civil action without being required to prepay fees and
costs or give security for the same, the applicant and his or her attorney were deemed
to have entered into a stipulation that the recovery, if any, secured in the action shall be
paid to the Clerk of the Court, who shall pay therefrom all unpaid costs taxed against
plaintiff and remit the balance to plaintiff. Local Rule 3.1(c)(1).
Plaintiff 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: 6/26/2012

s/ MICHAEL J. REAGAN
United States District Judge

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