Smith v. Donald Gaetz et al

Filing 7

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. The Clerk is DIRECTED to correct the spelling of Defendant Gaetz' surname. Defendants SLEDGE, SCHICKER, LARSON, WEXFORD HEALTH SERVICES, INC., and UNKNOWN PARTY FOOD/DIETARY SERVICES ADMINISTRATOR are DISMISSED from this action without prejudice. Defendants STATE of ILLINOIS/GOVERNOR, GODINEZ, ALLEN, and DEEN are DISMISSED from this action with prejudice. The Clerk of Court shall prepare for Defendants SHAH, BROWN, BRYANT, and GAETZ: (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 J. Phil Gilbert on 4/2/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBIN SMITH, # N-54258,
Plaintiff,
vs.
STATE of ILLINOIS,
SALVADOR A. GODINEZ,
DONALD GEATZ, 1 GINA ALLEN,
KIM DEEN, CHRISTINE BROWN,
VIPIN SHAH, TERRI BRYANT,
DR. JAMES SLEDGE,
UNKNOWN PARTY,
DR. LOUIS SCHICKER, LARSON, and
WEXFORD HEALTH SERVICES, INC.,
Defendants.

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Case No. 13-cv-220-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Robin Smith, currently incarcerated at Pinckneyville Correctional Center
(“Pinckneyville”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff is serving a 28 year sentence for aggravated discharge of a firearm, and a six year
sentence on a drug conviction. Plaintiff claims that Defendants have subjected him to cruel and
unusual punishment by including high amounts of soy protein in the prison diet, and failing to
address his medical problems resulting from his consumption of soy.
Specifically, Plaintiff asserts that he has been consuming “up to 75 grams or more” of soy
protein per day in the prison diet, “which is toxic” (Doc. 1, p. 15). Because of eating this large
amount of soy protein, he has developed digestive problems including severe, chronic, and
painful constipation, bloating, and gas. He is taking Colace for the constipation, but has
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The correct spelling of this Defendant’s name is Gaetz, as reflected in the complaint. The Clerk shall be
directed to correct this error.

requested Defendant Shah (the prison doctor) to give him something stronger because this
medication has not solved the problem. Previously, Defendant Shah had prescribed milk of
magnesia for two weeks, and Maalox for two weeks.
According to the complaint, then-Governor Rod Blagojevich changed the prison diet to
use large amounts of processed soy protein in either January 2003 or 2004 (Doc. 1, p. 10). Since
that time prisoners have been served very little meat. Defendants Sledge, Bryant, and the John
Doe Food/Dietary Services Administrator were responsible for procuring food ingredients,
planning the master menu, and providing a nutritious and healthful diet, respectively (Doc. 1, pp.
11-12, 14). Defendants Deen, Allen, and Gaetz were responsible for investigating and making
decisions on inmate grievances (Doc. 1, pp. 12-13). Defendants Schicker, Brown, Larson, and
Wexford Health Services, Inc. (“Wexford”), were responsible for providing proper medical care
to inmates (Doc. 1, pp. 11, 13-14). Plaintiff seeks injunctive relief to obtain a soy-free diet and
adequate medical care, as well as damages (Doc. 1, pp. 16-17).
Plaintiff includes a number of exhibits with his complaint (Doc. 1, pp. 18-44). These
reveal that he had requested a thyroid test and a soy-free diet (Doc. 1, p. 21). Plaintiff’s requests
were denied in May 2011 because he showed no symptoms of thyroid problems, and there was
no indication that a soy-free diet was medically necessary (Doc. 1, pp. 21-22). He again
requested a soy free diet in 2012 from Defendants Bryant (Pinckneyville Dietary Manager),
Shah, and Brown (Pinckneyville Health Care Unit Administrator) (Doc. 1, pp. 23-24).
Defendant Bryant informed Plaintiff that there was no such thing as a soy-free diet. Plaintiff’s
grievance over this matter was denied on September 26, 2012, with a notation that “Per the
HCUA [Health Care Unit Administration]: Healthcare provides the healthcare, not food. A soy
free diet is your choice, not medical’s” (Doc. 1, p. 23). Finally, he includes two pages describing
the “effects of soy” (Doc. 1, pp. 43-44). Although Plaintiff does not identify the source, those
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pages were excerpted from the First Amended Complaint filed in Harris v. Brown, 07-cv-3225HAB-CHE (C.D. Ill., Doc. 142, filed June 1, 2009). Harris is a pending case in which several
inmates are seeking damages for alleged adverse health effects of soy content in the prison diet.
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of
the complaint. Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has stated
an arguable Eighth Amendment claim for deliberate indifference to his serious medical needs
against certain Defendants. Whether he can prove that soy is to blame for his symptoms must
await a more developed record. At this juncture, Plaintiff’s claims against those Defendants who
refused his requests for a soy-free diet, despite his complaints of serious medical problems, shall
receive further consideration. These parties are Defendants Shah, Brown, and Bryant. In
addition, because Plaintiff is seeking injunctive relief, Defendant Warden Gaetz shall remain in
the action. See Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (proper defendant in a
claim for injunctive relief is the government official responsible for ensuring any injunctive
relief is carried out).
However, Plaintiff has failed to state a claim upon which relief may be granted as to the
remaining Defendants. Any claim for deliberate indifference to medical needs, or that a prisoner
has been subjected to unconstitutional conditions of confinement (such as being forced to eat a
dangerous or deficient diet), must satisfy both the objective and subjective components
applicable to all Eighth Amendment claims. McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1994);
see also Wilson v. Seiter, 501 U.S. 294, 302 (1991). For the objective element, the condition
must result in unquestioned and serious deprivations of basic human needs (such as food,
medical care, sanitation, or physical safety) or deprive inmates of the minimal civilized measure
of life’s necessities. Rhodes v. Chapman, 452 U.S. 337, 347 (1981); accord Jamison-Bey v.
Thieret, 867 F.2d 1046, 1048 (7th Cir. 1989); Meriwether v. Faulkner, 821 F.2d 408, 416 (7th
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Cir. 1987). The subjective component of a deliberate indifference claim is satisfied if the
plaintiff shows that the prison official acted or failed to act despite the official’s knowledge of a
substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 842 (1994).
Plaintiff’s complaint fails to indicate that Defendants Sledge, Godinez, Gaetz, Allen,
Deen, Schicker, Larson, or the John Doe Food/Dietary Services Administrator either acted or
failed to act with deliberate indifference to a known risk from the soy content in the prison diet.
Plaintiff does not indicate that any of these individuals was personally involved in the decisions
to deny his requests for a soy-free diet, or for any decisions regarding Plaintiff’s medical
treatment. In order to be held individually 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)). Thus, a
Defendant who merely reviewed Plaintiff’s grievances over the actions of other individuals, or
who held a supervisory position over an alleged wrongdoer, does not incur legal responsibility.
Defendants Sledge, Godinez, Allen, Deen, Schicker, Larson, and the John Doe Food/Dietary
Services Administrator shall therefore be dismissed from the action.
Similarly, Defendant Wexford, the corporation that provides medical care at the prison,
cannot be held liable solely on that basis. A corporation may be liable for deliberate indifference
only if it had a policy or practice that caused the alleged violation of a constitutional right.
Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004). See also Jackson
v. Ill. Medi-Car, Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002) (private corporation is treated as
though it were a municipal entity in a § 1983 action). Plaintiff makes no allegation that any
individual Defendant acted or failed to act as a result of an official policy espoused by Defendant
Wexford; this Defendant shall also be dismissed.
Finally, Plaintiff cannot maintain a civil rights claim for damages against the Defendant
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State of Illinois/Governor. It appears from the complaint that Plaintiff intended to name current
Governor Pat Quinn as a party (Doc. 1, p. 1). However, the complaint includes no allegations
that Governor Quinn was involved in any way in formulating the prison diet or denying
Plaintiff’s requests for a diet free of soy (Doc. 1, p. 10). Further, the Supreme Court has held
that “neither a State nor its officials acting in their official capacities are ‘persons’ under
§ 1983.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). See also Wynn v.
Southward, 251 F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment bars suits against states in
federal court for money damages). Accordingly, Defendant State of Illinois/Governor shall be
dismissed from the action.
Pending Motions
Plaintiff’s motion for appointment of counsel (Doc. 3) shall be REFERRED to United
States Magistrate Judge Frazier for further consideration.
The motion for service at government expense (Doc. 4) is GRANTED IN PART AND
DENIED IN PART. Service shall be ordered below for those Defendants who remain in the
action. No service shall be made on the dismissed Defendants.
Disposition
The Clerk is DIRECTED to correct the spelling of Defendant Gaetz’ surname.
Defendants SLEDGE, SCHICKER, LARSON, WEXFORD HEALTH SERVICES,
INC., and UNKNOWN PARTY FOOD/DIETARY SERVICES ADMINISTRATOR are
DISMISSED from this action without prejudice.
Defendants STATE of ILLINOIS/GOVERNOR, GODINEZ, ALLEN, and DEEN are
DISMISSED from this action with prejudice.
The Clerk of Court shall prepare for Defendants SHAH, BROWN, BRYANT, and
GAETZ: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and
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(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 each Defendant’s place of
employment as identified by Plaintiff. If a 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 that Defendant, and the Court will
require that Defendant to pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work 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
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every 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 the document was served on Defendants 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.
Defendants are 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 Philip M. Frazier for further pre-trial proceedings, which shall include a determination on
the pending motion for appointment of counsel (Doc. 3).
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Further, this entire matter shall be REFERRED to United States Magistrate Judge
Frazier for disposition, pursuant to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties
consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 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).
Finally, 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: April 2, 2013

s/J. Phil Gilbert
United States District Judge

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