Sultan v. Feinrmen et al

Filing 11

ORDER: Defendants State of Illinois, Walker, Rednour, Ryker, Allen and Hulick are DISMISSED from this action with prejudice. Count 2 is severed into a separate action, for which the Clerk shall open a new case. Defendants in the instant action for de liberate indifference to serious medical needs are Feinerman, Fenoglio, Brown, Puisis, John Doe #1, Godinez, Sledge, Wexford Health Services and Schicker. In the new case, addressing Plaintiffs retaliation claim, the Defendants are C/O Horman and C/O Coffey. Plaintiff shall notify the Court by September 18, 2012, if he does not wish to proceed on either case. At that time, the Court will order service of process on Defendants., John Doe #1, D. Rednour, Lee Ryker, Gina Allen, Wexford Health Serv ices, L. Shicker, C/O Horman, C/O Coffey and Donald A. Hulick added. Denying 10 MOTION to Appoint Counsel filed by Charles Sultan. The Court further directs the Clerk to add to the docket of the newly-opened case a copy of Plaintiffs complaint, the IFP application from this case and a copy of this order. (Action due by 9/18/2012). Signed by Judge Michael J. Reagan on 8/21/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES SULTAN, #A-93755,
Plaintiff,
vs.
ADRIAN FEINERMAN, JAMES
SLEDGE, STATE OF ILLINOIS,
S. GODINEZ, ROGER WALKER, JR.,
MICHAEL PUISIS, JOHN DOE #1,
D. REDNOUR, LEE RYKER, GINA
ALLEN, WEXFORD HEALTH
SERVICES, L. SHICKER, DR.
FENOGLIO, CHRISTINE BROWN,
C/0 HORMAN, C/O COFFEY and
DONALD HULICK,
Defendants.

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Case No. 11-CV-0911-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Charles Sultan, previously incarcerated in Menard
Correctional Center and currently incarcerated in Lawrence Correctional
Center, brings suit for constitutional deprivations that occurred at both
facilities.1 In a nutshell, Plaintiff alleges that the soy in his diet is making

The Court will direct the Clerk of Court to add the following Defendants to the docket
sheet:
John Doe #1 (Food Services Administrator), D. Rednour (Warden, Menard
Correctional Center), Lee Ryker (Warden, Lawrence Correctional Center), Gina Allen
(Administrative Review Board member), Wexford Health Services, L. Shicker (Regional
Administrator, Wexford), C/O Horman, C/O Coffey and Donald A. Hulick (Chief
Administrative Officer).
1

1

him sick. Plaintiff seeks compensatory damages and injunctive relief.

The

case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A.
The Court is required by § 1915A to review a Complaint filed by
a prisoner against a governmental entity or officer and, through such
process, to identify cognizable claims, dismissing any claim that is “frivolous,
malicious, or fails to state a claim upon which relief may be granted....”
Plaintiff alleges that at both Menard and Lawrence, the food
served to him caused (among other things):
discolored feces, heart health, helicobacter pylori organisms,
gastritis [inflammation], bleeding ulcers, skin rashes, [diarrhea],
abdominal pain, blood in bowel movement, brain fog, pain in
digestive tract, fluctuation of weight, irritable bowel syndrome,
fatigue, vomiting, pain after eating, severe constipation from
time to time.
Plaintiff attributes his sickness to the soy in the food.

He alleges that all

Defendants have denied him any permanent alternative diet, and he has not
received adequate and necessary medical care from any Defendant. Plaintiff
claims that his symptoms have been ignored and misdiagnosed.
Deliberate indifference to a serious medical need violates a
prisoner's right under the Eighth Amendment to be free from cruel and
unusual punishment. Cotts v. Osafo, 2012 WL 3240667, at *2 (7th Cir.
August 10, 2012), citing Estelle v. Gamble, 429 U.S. 97, 104 (1976).
Plaintiff must allege a medical condition that is “objectively, sufficiently
serious”; that is, “one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would perceive
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the need for a doctor's attention.” Greeno v. Daley, 414 F.3d 645, 653
(7th Cir. 2005) (citations omitted). Additionally, Plaintiff must allege the
subjective component; that is, officials knew of and disregarded an
excessive risk to his health. Id. citing Farmer v. Brennan, 511 U.S. 825,
837 (1994) (official must “both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists” and “must also draw the inference”).
The Court concludes that Plaintiff states an arguable Eighth
Amendment claim for deliberate indifference to his serious medical needs.
Whether soy is to blame for his sickness must await a more developed
record. The question at this juncture is against which Defendants this claim
may be brought.
The claim will proceed against those with control over the Illinois
Department of Corrections’ master menu or control over whether Plaintiff
should be prescribed a soy-free diet: Dr. Feinerman, Dr. Fenoglio, Christine
Brown, IDOC Medical Director Michael Puisis, John Doe #1 (food services
administrator), IDOC Director S. Godinez, Central Management Services
Director James Sledge, Wexford Health Services and Wexford Regional
Administrator L. Schicker.
No plausible inference of personal responsibility arises against
Roger Walker, who is simply identified as the former director of the IDOC

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with no allegations brought against him. He is DISMISSED with prejudice
as a Defendant herein.
The State of Illinois is also DISMISSED with prejudice because
the Eleventh Amendment prohibits an individual from suing a state in federal
court. Sanders v. Sheahan, 198 F.3d 626, 630 (7th Cir. 1999).
Plaintiff also claims that Defendants Horman and Coffey placed
him in segregation in retaliation for assisting other inmates in filing
grievances, exhausting remedies and writing letters to the Court complaining
about soy in their diet. Although not completely clear, it seems this claim is
also raised against Rednour, Ryker, Allen and Hulick. Plaintiff asserts that
Rednour and Ryker are responsible for decisions regarding segregation at
Menard and Lawrence, respectively.

Plaintiff claims that Allen, as an

Administrative Review Board member, is responsible for investigating claims
made in grievances, and Hulick, as chief administrative officer, denied his
grievance against Horman and Coffey.
Essentially, Plaintiff complains that he was retaliated against and
placed in segregation for acting as a jail-house lawyer with respect to soy
diet claims.
Amendment.

Courts have recognized such claims as viable under the First
See Bridges v. Gilbert, 557 F.3d 541, 554 (7th Cir.

2009) (citation omitted) (“If a prisoner is transferred for exercising
his own right of access to the courts, or for assisting others in
exercising their right of access to the courts, he has a claim under §

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1983.”); see also L'Heureux v. Ashton, 1996 WL 55707, at *1 (1st
Cir. 1996) (collecting cases). So, Plaintiff’s allegations that Defendants
Horman and Coffey retaliated against him for his activities as a jail-house
lawyer sufficiently implicate the First Amendment to survive threshold
review.
Plaintiff’s claims against Rednour, Ryker, Allen and Hulick must
be dismissed with prejudice for lack of personal responsibility for the alleged
retaliation. Additionally, as to Allen and Hulick, Plaintiff fails to state a claim
because “a state’s inmate grievance procedures do not give rise to a liberty
interest protected by the Due Process Clause.” Antonelli v. Sheahan, 81
F.3d 1422, 1430 (7th Cir. 1995). The Constitution requires no procedure
at all, and the failure of state prison officials to follow their own procedures
does not, of itself, violate the Constitution. Maust v. Headley, 959 F.2d
644, 648 (7th Cir. 1992); Shango v. Jurich, 681 F.2d 1091, 1100-01
(7th Cir. 1982).

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).
In George v. Smith, 507 F.3d 605 (7th Cir. 2007), the
Seventh

Circuit

emphasized

that

unrelated

claims

against

different

defendants belong in separate lawsuits, “not only to prevent the sort of
morass” produced by multi-claim, multi-defendant suits “but also to ensure
that prisoners pay the required filing fees” under the Prison Litigation Reform

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Act.

George, 507 F.3d at 607, citing 28 U.S.C. § 1915(b), (g).

Plaintiff’s

complaint

Defendants:

contains

two

unrelated

claims

against

different

an Eighth Amendment claim of deliberate indifference to

medical needs against Feinerman, Fenoglio, Brown, Puisis, John Doe #1,
Godinez, Sledge, Wexford Health Services and Schicker (Count 1) and a First
Amendment claim for retaliation for acting as a jail-house lawyer against
Horman and Coffey (Count 2).

Plaintiff seeks compensatory damages and

injunctive relief as to Count 1.2 He seeks only compensatory damages as to
Count 2.
Consistent with the George decision and Federal Rule of Civil
Procedure 21, the Court SEVERS Count 2 of Plaintiff’s complaint and
DIRECTS the Clerk to open a new case with a newly-assigned case number
for that case. The Court further directs the Clerk to add to the docket of the
newly-opened case a copy of Plaintiff’s complaint, the IFP application from
this case and a copy of this order. If for any reason, Plaintiff does not wish
to proceed either with this case or with the newly-opened case, he must
notify the Court within 30 days. Unless Plaintiff notifies the Court that he
does not wish to pursue one of these actions, he will be responsible for a
separate filing fee in each case.
2

The Court leaves for another day – and a fuller record – the question of whether Plaintiff’s
request for injunctive relief specific to Menard is moot. Because Plaintiff is no longer an
inmate at Menard, his prayer for injunctive relief would be moot unless he can show “a
realistic possibility that he will again be incarcerated in the same state facility and therefore
be subject to the actions of which he complains here.” Maddox v. Love, 655 F.3d 709,
716 (7th Cir. 2011), citing Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009).

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The Court DIRECTS the Clerk of Court to add the following
Defendants

to

the

docket

sheet:

John

Doe

#1

(Food

Services

Administrator), D. Rednour (Warden, Menard Correctional Center), Lee
Ryker (Warden, Lawrence Correctional Center), Gina Allen (Administrative
Review Board member), Wexford Health Services, L. Shicker (Regional
Administrator, Wexford), C/O Horman, C/O Coffey and Donald A. Hulick
(Chief Administrative Officer).
Pending motion
Plaintiff moves for the third time for appointment of counsel
(Doc. 10). There is no constitutional or statutory right to appointment of
counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d 847, 851
(7th Cir. 2010). Federal District Courts have discretion under 28 U.S.C. §
1915(e)(1) to request counsel to assist pro se litigants.

Id.

When

presented with a request to appoint counsel, the Court must consider: “(1)
has the indigent plaintiff made a reasonable attempt to obtain counsel or
been effectively precluded from doing so; and if so, (2) given the difficulty of
the case, does the plaintiff appear competent to litigate it himself [.]” Pruitt
v. Mote, 503 F.3d 647, 654 (7th Cir. 2007). Previously, appointment of
counsel was denied because Plaintiff had not shown that he attempted to
obtain counsel. Now, Plaintiff has attached copies of letters from the Illinois
State Bar Association and five law firms, evidencing that he has made an
effort to obtain counsel on his own.

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The pleadings and motion filed by

Plaintiff indicate, however, that he is quite competent to prosecute this
action without assistance of counsel, at least at present. The Court will deny
Plaintiff’s motion (Doc. 10) without prejudice to his filing a motion for
appointment of counsel at a later stage in the litigation.
Disposition
Defendants State of Illinois, Walker, Rednour, Ryker, Allen and
Hulick are DISMISSED from this action with prejudice. Count 2 is severed
into a separate action, for which the Clerk shall open a new case.
Defendants in the instant action for deliberate indifference to serious medical
needs are Feinerman, Fenoglio, Brown, Puisis, John Doe #1, Godinez,
Sledge, Wexford Health Services and Schicker. In the new case, addressing
Plaintiff’s retaliation claim, the Defendants are C/O Horman and C/O Coffey.
Plaintiff shall notify the Court by September 18, 2012, if he does not wish
to proceed on either case.

At that time, the Court will order service of

process

The

on

Defendants.

Court

DENIES

Plaintiff’s

appointment of counsel (Doc. 10) without prejudice.
IT IS SO ORDERED.
DATED this 21st day of August, 2012

s/Michael J. Reagan__
MICHAEL J. REAGAN
United States District Judge

8

motion

for