Hruby v. Hodge et al

Filing 9

ORDER DISMISSING CASE with prejudice for failure to state a constitutional claim upon which relief may be granted. Plaintiff is ADVISED that this dismissal shall count as one of his allotted "strikes" under the provisions of 28 U.S.C. § 1915(g). Signed by Judge G. Patrick Murphy on 5/31/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANDREW C. HRUBY, #S-07587,
Individually and on behalf of all
similarly situated persons,
Plaintiffs,
vs.
MARC HODGE,
RICHARD DENSMORE,
and UNKNOWN PARTIES
(John & Jane Doe Food
Service Supervisors),
Defendants.

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Case No. 13-cv-386-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
Plaintiff, currently incarcerated at Lawrence Correctional Center (“Lawrence”), has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving a seven
year sentence for criminal sexual assault. He claims that Defendants have deprived him of his
civil rights by routinely giving him and other inmates inadequate portions of food, thus denying
them adequate nutrition.
The Complaint
Plaintiff states that upon his arrival at Lawrence in March 2012, he noticed that the meal
portions were smaller than they had been at his last prison (Doc. 1, p. 4). In response to a
Freedom of Information request, he obtained a copy of the master menu for the Illinois
Department of Corrections (“IDOC”) (Doc. 1-1). Comparing this master menu with the actual
portions of food he received, he concluded that reduced portions were being served.

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For

example, a breakfast meal would include two pancakes instead of three, one cup of cereal instead
of two, and eight ounces of milk instead of sixteen (Doc. 1, p. 5). The reduced breakfast ration
of milk was sometimes made up in part by the addition of a serving of milk at lunch. However,
other reduced portions were not offset by a substitution of other food or with larger portions in a
later meal. Plaintiff claims to have suffered weight loss, headaches, mental anguish, and hunger
pains as a result of the limited food portions, on days when he did not have the funds to buy extra
food from the prison commissary (Doc. 1, p. 8).
Plaintiff filed grievances directed to Defendant Hodge (the warden), complaining about
the inadequate meal portions (Doc. 1-2). He also wrote to the IDOC Southern Region Deputy
Director, who forwarded Plaintiff’s concerns to Defendant Hodge (Doc. 1-3). However, there
was no change to increase the portion sizes.
Plaintiff contends that the Defendants’ actions amount to cruel and unusual punishment
and deliberate indifference. He also asserts a state law claim for negligence. He seeks injunctive
and declaratory relief, as well as damages (Doc. 1, pp.10-11).
Merits Review Pursuant to 28 U.S.C. § 1915A
Under § 1915A, the Court is required to conduct a prompt threshold review of the
complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which
relief may be granted, or seek monetary relief from an immune defendant.

After fully

considering the allegations in Plaintiff’s complaint, the Court concludes that this action is subject
to summary dismissal.
Although Plaintiff’s complaint outlined his cruel and unusual punishment claim in a
separate count from his deliberate indifference claim, both legal theories arise from the “cruel
and unusual punishment” clause of the Eighth Amendment. This clause not only prohibits

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barbarous physical punishment, but extends to forbid prison conditions that are constitutionally
unacceptable, and punishment that is totally without penological justification. See Rhodes v.
Chapman, 452 U.S. 337, 346 (1981); Gregg v. Georgia, 428 U.S. 153, 173 (1976). Regardless
of how Plaintiff might label his claims, the elements of these claims are identical. All of
Plaintiff’s allegations relate to the conditions of his confinement, specifically, that Defendants
did not provide him with enough food.
In a case involving conditions of confinement in a prison, two elements are required to
establish violations of the Eighth Amendment’s cruel and unusual punishments clause. First, an
objective element requires a showing that the conditions deny the inmate “the minimal civilized
measure of life’s necessities,” creating an excessive risk to the inmate’s health or safety. Farmer
v. Brennan, 511 U.S. 825, 834 (1994). The second requirement is a subjective element –
establishing a defendant’s culpable state of mind. Id.
Not all prison conditions trigger Eighth Amendment scrutiny – only unquestioned and
serious deprivations of basic human needs like food, medical care, sanitation, and physical
safety. Rhodes, 452 U.S. at 346; see also James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir.
1992).
As to the subjective component of an Eighth Amendment claim, the relevant state of
mind is deliberate indifference to inmate health or safety; the official must be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists, and he also
must draw the inference. See, e.g., Farmer, 511 U.S. at 837; Wilson v. Seiter, 501 U.S. 294, 303
(1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976); DelRaine v. Williford, 32 F.3d 1024, 1032
(7th Cir. 1994). The deliberate indifference standard 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

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serious harm. Farmer, 511 U.S. at 842. A failure of prison officials to act in such circumstances
suggests that the officials actually want the prisoner to suffer the harm. Jackson v. Duckworth,
955 F.2d 21, 22 (7th Cir. 1992). It is well settled that mere negligence does not violate the
constitution. See, e.g., Davidson v. Cannon, 474 U.S. 344, 347-48 (1986).
In some circumstances, a prisoner’s claim that he was denied food may satisfy the first
Farmer element but, as the Seventh Circuit has held, the denial of food is not a per se violation
of the Eighth Amendment.

Reed v. McBride, 178 F.3d 849, 853 (7th Cir. 1999).

When

reviewing this type of claim, a district court “must assess the amount and duration of the
deprivation,” Reed, 178 F.3d at 853, in order to determine whether the denial of food has
constitutional implications. See generally Wilson v. Seiter, 501 U.S. 294, 304 (1991) (it would
be an Eighth Amendment violation to deny a prisoner an “identifiable human need such as
food”); Atkins v. City of Chicago, 631 F.3d 823, 830 (7th Cir. 2011) (“Depriving a person of
food for four days would impose a constitutionally significant hardship.”); Sanville v.
McCaughtry, 266 F.3d 724, 734 (7th Cir. 2001) (withholding food from an inmate can, in some
circumstances, satisfy the first Farmer prong); Reed, 178 F.3d at 853, 856 (denial of all food for
three to five days at a time created a genuine issue of material fact as to an inmate's Eighth
Amendment claim); Simmons v. Cook, 154 F.3d 805, 809 (8th Cir. 1998) (denying prisoners four
consecutive meals over two days violated the objective component of the Farmer test); Talib v.
Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998) (noting that denial of one out of every nine meals is
not a constitutional violation); Cooper v. Sheriff of Lubbock Cnty., 929 F.2d 1078 (5th Cir. 1991)
(failure to feed a prisoner for twelve days is unconstitutional); Cunningham v. Jones, 567 F.2d
653, 669 (6th Cir. 1977), app. after remand, 667 F.2d 565 (1982) (feeding inmates only once a

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day for 15 days, would constitute cruel and unusual punishment only if it “deprive[s] the
prisoners concerned . . . of sufficient food to maintain normal health”).
In the case at bar, Plaintiff claims that the reduced portions of some food items have
deprived him of adequate nutrition. He points out that the IDOC “master menu” lists the amount
of each food item that should be served for each meal. Plaintiff’s argument that he has been
deprived of sufficient food rests on his claim that he has been served smaller amounts than
specified in that menu. However, even if Lawrence food service workers are not following the
guidelines of the master menu, that failure alone does not amount to a constitutional violation. A
federal court does not enforce state law or regulations. Archie v. City of Racine, 847 F.2d 1211,
1217 (7th Cir. 1988) (en banc), cert. denied, 489 U.S. 1065 (1989). And an internal menu
guideline promulgated by a state agency has much less force than a state statute or administrative
code.
Unlike the examples in Atkins, Reed, Talib, Simmons, Cooper, and Cunningham, cited
above, Plaintiff does not claim that prison officials denied him an entire meal on even one
occasion. According to his complaint, he has been provided with three meals each day on a
regular basis. Although the portions served may be smaller than what is specified in the master
menu, Plaintiff is still receiving a fairly balanced diet and being fed three times daily. Plaintiff’s
example of receiving half-servings of milk and cereal, and a 2/3-portion of pancakes does not
strike this Court as so meager or insufficient as to raise a concern that Plaintiff faces an excessive
risk to his health as a result of the food service practices at Lawrence.
The Court concludes that the complaint fails to indicate that Plaintiff faced an objectively
serious risk of harm from the reduced portions of food. In the absence of an obvious risk of
harm, it cannot be said that Defendants knowingly subjected Plaintiff to conditions that

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threatened his health. Such deliberate indifference to an obvious risk of harm is the other
element that is required in order to state an Eighth Amendment claim. See Farmer v. Brennan,
511 U.S. 825, 834 (1994). Plaintiff’s factual allegations do not indicate that he has suffered a
deprivation of constitutional proportions, nor do they show that Defendants were deliberately
indifferent to his right to receive adequate nourishment while under their care.
While Plaintiff’s constitutional claims shall be dismissed, the Court expresses no opinion
on the viability of his state law negligence claim. 1 Where all federal claims are dismissed, the
Court will not exercise supplemental jurisdiction over a potential state law claim, but instead will
dismiss it without prejudice to the claim being re-filed in state court, should Plaintiff wish to do
so. See Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999) (“[T]he usual practice is to
dismiss without prejudice state supplemental claims whenever all federal claims have been
dismissed prior to trial.”).
Pending Motions and Subpoena Request
All pending motions are DENIED AS MOOT. Further, on April 29, 2013, Plaintiff
submitted a proposed subpoena to produce documents, directed to Defendant Hodge. Because
this action shall be dismissed, the requested subpoenas shall not be issued by the Clerk.
Disposition
For the reasons stated above, this action is DISMISSED with prejudice for failure to
state a constitutional claim upon which relief may be granted.
Plaintiff is ADVISED that this dismissal shall count as one of his allotted “strikes” under
the provisions of 28 U.S.C. § 1915(g). Plaintiff’s obligation to pay the filing fee for this action

1

In Illinois, in order to state a claim for negligence, a complaint must allege facts to establish that the
defendant owed the plaintiff a duty of care, breached that duty, and that the breach was the proximate
cause of the plaintiff’s injury. Thompson v. Gordon, 948 N.E.2d 39, 45 (Ill. 2011) (citing Iseberg v.
Gross, 879 N.E.2d 278 (2007)).
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was incurred at the time the action was filed, thus the filing fee of $350.00 remains due and
payable. See 28 U.S.C. § 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). The
Clerk shall CLOSE THIS CASE and enter judgment accordingly.

IT IS SO ORDERED.
DATED: May 31, 2013

/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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