Harris v. Butler et al

Filing 258

ORDER GRANTING 239 MOTION for Summary Judgment for Deliberate Indifference to a Serious Medical Need filed by Dr Shearing. Signed by Magistrate Judge Reona J. Daly on 2/14/2018. (nmf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LARRY G. HARRIS,

)
)
Plaintiff,
)
)
v.
)
)
KIMBERLY BUTLER, R. HARRINGTON, )
SANDRA FUNK, LOYD HANNA, JIM
)
WINTERS, WARDEN FLAGG, SUSANNE )
GRISWALD-BAILEY, DR. SHEARING, M. )
ATCHISON, and BRAD J. ROBERT,
)
)
Defendants.
)

Case No. 3:14-cv-498-RJD

ORDER
DALY, Magistrate Judge:
Plaintiff Larry G. Harris, an inmate in the custody of the Illinois Department of
Corrections (“IDOC”), filed this action pursuant to 42 U.S.C. § 1983 alleging deprivations of his
constitutional rights. Plaintiff alleges he was transferred from a medium security facility to a
maximum security facility in retaliation for requesting his medically-prescribed, non-soy diet and
engaging in First Amendment activity. Plaintiff also alleges his requests for a non-soy diet were
refused, and he was denied a low bunk permit and medications that had been prescribed to treat a
rash on his face. The only claims that remain pending1 are against Defendant Dr. Shearing for
retaliation, conspiracy, and deliberate indifference for denying Plaintiff his prescribed non-soy
diet2.
1

Plaintiff settled his claims against the IDOC Defendants (See Doc. 241).
In reviewing the parties’ briefing, it appears there is some confusion as to what claims Plaintiff was allowed to
proceed on against Dr. Shearing following the Court’s threshold review. For clarification, the Court only allowed
Plaintiff to proceed on his deliberate indifference claim against Dr. Shearing for failing to prescribe him a non-soy
diet. The Court did not allow Plaintiff to proceed on any claims related to his rash or the failure to issue a low bunk
permit.

2

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Defendant Robert Shearing, M.D. filed a Motion for Summary Judgment on October 27,
2017 (Doc. 239). Plaintiff filed his response on December 5, 2017 (Docs. 247-248). For the
reasons set forth below, the Motion is GRANTED.
BACKGROUND
Harris’ claims against Dr. Shearing concern his alleged failure to prescribe him a non-soy
diet while he was incarcerated at Menard Correctional Center (“Menard”). Harris asserts that he
suffers from Hashimoto’s Thyroditis3 (see Deposition of Larry Harris, Doc. 240-4, p. 6). His
condition causes him to suffer from hypothyroidism, which causes him chronic constipation,
severe bowel bleeding, hemorrhoids, low heart rate, and night sweats (Id.). Harris’ medical
records indicate he was prescribed Synthroid to manage his hypothyroidism (Affidavit of Robert
Shearing, M.D., Doc. 240-2, ¶¶ 9, 12-14; see Plaintiff’s Medical Records, Doc. 240-1, pp. 6, 8, 13,
16). It is undisputed that Harris does not suffer from a soy allergy; however, he asserts that eating
soy aggravates his thyroid gland, which exacerbates his disease (Id. at 30). For this reason, Harris
has often sought a soy diet while incarcerated at IDOC facilities (Id. at 8). Harris testified that he
received a soy diet while incarcerated at Pinckneyville and Lawrence Correctional Centers, but Dr.
Shearing denied his requests for a soy diet while he was at Menard from January 28, 2013 to
February 6, 2013, and again from June 7, 2013 to July 25, 2013, when the Assistant Warden of
Programs directed that he be provided a soy-free diet as an “administrative move” (Doc. 240-4 at
32, 34; Doc. 240-2 ¶ 24; see Doc. 240-1 at 22 and Doc. 248-1 at 3).
In particular, Harris testified that while on a writ at Menard from January 28, 2013 to
February 6, 2013, he saw Dr. Shearing on one occasion (Doc. 240-4 at 32). Harris told Dr.
3

Hashimoto’s disease is a condition in which the immune system attacks the thyroid. It is the most common cause of
hypothyroidism in the United States. Hashimoto’s disease, MAYO CLINIC,
https://www.mayoclinic.org/diseases-conditions/hashimotos-disease/symptoms-causes/syc-20351855.

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Shearing that he needed a non-soy diet and asked him to look at his medical records and internet
research regarding his condition and its relation to soy (Id. at 32, 34). Dr. Shearing refused to
look at the internet research and told Harris that they did not offer non-soy diets at Menard, but he
would treat him when he became sick from the soy (Id. at 32). As a result, Harris had to refuse his
food trays during this brief stay (Doc. 248-3 at 2-3).
Harris asserts that after he returned to Menard on June 7, 2013, Dr. Shearing refused to see
him (Id. at 32). Sometime after his transfer, Harris explains he ate some soy to demonstrate he
would get sick and was seen by medical staff (Doc. 248-3 at 3). According to Harris’ medical
records, he saw a nurse on July 10, 2013, to request a non-soy diet (Doc. 240-2 at ¶ 20; see Doc.
240-1 at 19). Harris self-reported that he had allergic reactions requiring hospitalization with the
ingestion of soy products (Id.). The nurse then referred Harris to the MD call line to discuss his
request for a non-soy diet (Id.). Harris attests that he was placed on Dr. Shearing’s call line, but
Dr. Shearing refused to see him and refused to review his medical records4 (Doc. 248-3 at 3). Dr.
Shearing attests that he performed a jacket review of Harris’ chart on July 18, 2013 (Doc. 240-2 at
¶ 21; see Doc. 240-1 at 20). Dr. Shearing noted that Harris requested a soy-free diet and, after
reviewing his medical chart, determined that there was no objective evidence to support Harris’
statements that he was allergic to soy or that he had been hospitalized due to the ingestion of soy
products (Id.). Therefore, Dr. Shearing denied Harris’ request for a non-soy diet (Id.).
Harris saw Dr. Nwaobasi on July 18, 2013 and again requested a non-soy diet (Doc. 240-2
at ¶ 5; see Doc. 240-1 at 21). Dr. Nwaobasi noted there was no clinical lab data to confirm Harris’
alleged soy allergy, and referred Harris to be seen by the Medical Director (Dr. Shearing) (Id.).
Harris attests that he never saw Dr. Shearing while at Menard from June 7, 2013 to May 14, 2014
4

It is unclear how Harris has personal knowledge to support these statements.

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(Doc. 248-3 at 3); however, Dr. Shearing attests, in corroboration with Harris’ medical records,
that he saw Harris on July 18, 2013, shortly after his exam with Dr. Nwaobasi (Doc. 240-2 at ¶ 23;
see Doc. 240-1 at 21). Dr. Shearing states that he reviewed the medical records with Harris and
explained to him that he tested negative for a soy allergy and, therefore, he denied his request for a
soy-free diet (Id.).
Harris attests that in June and July 2013 he drafted numerous letters to Dr. Shearing
requesting a non-soy diet, but he never received a response (Doc. 240-4 at 34; Doc. 248-3 at 3).
Although Harris never received a response to his letters, he testified that a medical technician came
to his cell in August 2013 and told him to “stop putting in for sick call, Dr. Shearing ain’t [sic]
going to treat you, stop writing him” (Doc. 240-4 at 35).
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only if the moving party can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also
Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005).
The moving party bears the initial burden of demonstrating the lack of any genuine issue of
material fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary
judgment is made, the adverse party “must set forth specific facts showing there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of
material fact exists when “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting
Anderson, 477 U.S. at 248).
In assessing a summary judgment motion, the district court views the facts in the light most
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favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex Digital,
Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted). The Seventh
Circuit has remarked that summary judgment “is the put up or shut up moment in a lawsuit, when
a party must show what evidence it has that would convince a trier of fact to accept its version of
events.” Steen v. Myers et. al, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle
Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).
DISCUSSION
Count One - Retaliation
It is well settled that a prison official who takes action in retaliation for a prisoner’s
exercise of a constitutional right violates the Constitution. DeWalt v. Carter, 224 F.3d 607, 618
(7th Cir. 2000). The Seventh Circuit has articulated that for a plaintiff to prevail on a First
Amendment retaliation claim, he must show that (1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the
future; and (3) the First Amendment activity was “at least a motivating factor” in the defendant’s
decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)
(citing Woodruff v. Mason, 542 F.3d 545, 551 (7th Cir. 2008)) (other citations omitted).
At the summary judgment stage, the Seventh Circuit has held that the burden of proving
causation is split between the parties. Kidwell v. Eisenhauer, 679 F.3d 957, 965 (7th Cir. 2012).
Initially, in order to establish a prima facie case, the plaintiff must produce evidence that his
speech was at least a motiving factor in the defendant’s decision to take retaliatory action. Id.
Then, the burden shifts to the defendant to rebut the causal inference raised by the plaintiff’s
evidence. Id. If the defendant fails to counter the plaintiff’s evidence, then the defendant’s
retaliatory actions are considered a “necessary condition” of the plaintiff’s harm, and the plaintiff
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has established the “but-for” causation needed to succeed on his claim. Id.
In order to make his prima facie case at this stage, Harris’ evidence must be sufficient to
show that his complaints and litigation concerning the soy-diet issue was a motivating factor in Dr.
Shearing’s decision to deny his previous orders for a soy-diet, rosacea treatment, and low bunk
permit. Harris may meet his burden by presenting either direct or circumstantial evidence.
Kidwell, 679 F.3d at 965. Direct evidence is evidence which will prove a particular fact without
reliance upon inference or presumption, while circumstantial evidence is evidence from which a
trier of fact may infer that retaliation occurred, including suspicious timing or ambiguous oral or
written statements. Id. (quotations and citations omitted).
Plaintiff provides no direct evidence of any retaliatory motive. At most, it appears Harris
is relying on the general timing of the events to establish his prima facie case. The Seventh
Circuit has held that a plaintiff’s reliance on suspicious timing to establish a prima facie retaliation
claim will “rarely be sufficient in and of itself to create a triable issue.” Stone v. City of
Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir. 2002) (citations omitted). Further, the
adverse action must follow “close on the heels” of the protected expression and the plaintiff must
show that the person who took the adverse action knew of the protected conduct. Kidwell, 679
F.3d at 966. Here, the Court is not convinced that the alleged retaliatory action followed “close
on the heels” of any protected expression and, more importantly, there is simply a lack of evidence
that Dr. Shearing was even aware of the same. Accordingly, Dr. Shearing is entitled to summary
judgment as to Count One.
Count Two - Conspiracy
While civil conspiracy claims are cognizable under § 1983, see Lewis v. Washington, 300
F.3d 829, 831 (7th Cir. 2002) (recognizing conspiracy claim under section 1983), conspiracy is not
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an independent basis of liability in § 1983 actions. See Smith v. Gomez, 550 F.3d 613, 617 (7th
Cir. 2008) (citing Cefalu v. Village of Elk Grove, 211 F.3d 416, 423 (7th Cir. 2000)). “For
liability under § 1983 to attach to a conspiracy claim, defendants must conspire to deny plaintiffs
their constitutional rights.” Hill v. Shobe, 93 F.3d 418, 422 (7th Cir. 1996).
In order to proceed on his conspiracy claim, Plaintiff must demonstrate: (1) that Dr.
Shearing had an express or implied agreement with the other defendants to deprive him of his
constitutional rights, and (2) that he was deprived of his constitutional rights by Defendants’ overt
actions in furtherance of the agreement. Beaman v. Freesmeyer, 776 F.3d 500, 510 (7th Cir.
2015) (citing Scherer v. Balkema, 840 F.2d 437, 441-42 (7th Cir. 1998)).

Significantly,

“[b]ecause conspiracies are often carried out clandestinely and direct evidence is rarely available,
plaintiffs can use circumstantial evidence to establish a conspiracy, but such evidence cannot be
speculative.” Beaman, 776 F.3d at 511 (citing Williams v. Seriff, 342 F.3d 774, 785 (7th Cir.
2003). Moreover, the Seventh Circuit has directed that although “a conspiracy claim cannot
survive summary judgment if the allegations are vague, conclusionary, and include no overt acts
reasonably related to the promotion of the alleged conspiracy,” Amudsen v. Chicago Park Dist.,
218 F.3d 712, 718 (7th Cir. 2000) (internal quotation marks omitted), “[s]ummary judgment
should not be granted if there is evidence from which a reasonable jury could infer the existence of
a conspiracy,” Beaman, 776 F.3d at 510-11.
Harris fails to argue, with any specificity, what evidence demonstrates that Dr. Shearing
acted in concert with any other defendant to deprive him of a constitutional right. Indeed, he
merely rests on the circumstantial evidence “demonstrated throughout [his] memorandum.” As
there is no evidence of any agreement or overt action taken in furtherance of any agreement, Dr.
Shearing is entitled to summary judgment as to Count Two.
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Count Three - Deliberate Indifference
Dr. Shearing argues summary judgment in his favor is warranted as Harris has not shown
that he had a serious medical need necessitating a soy-free diet and, therefore, there is no basis to
find he acted with deliberate indifference in refusing to prescribe the same5.
The Eighth Amendment to the United States Constitution protects prisoners from cruel and
unusual punishment. U.S. Const., amend. VIII; see also Berry v. Peterman, 604 F.3d 435 (7th
Cir. 2010). The Supreme Court has recognized that “deliberate indifference to serious medical
needs of prisoners” may constitute cruel and unusual punishment under the Eighth Amendment.
Estelle v. Gamble, 429 U.S. 97, 104 (1976). In order to prevail on such a claim, the plaintiff must
show first that his condition was “objectively, sufficiently serious” and second, that the “prison
officials acted with a sufficiently culpable state of mind.” Greeno v. Daley, 414 F.3d 645, 652-53
(7th Cir. 2005) (citations and quotation marks omitted).
With regard to the first showing, the following circumstances could constitute a serious
medical need: “[t]he existence of an injury that a reasonable doctor or patient would find important
and worthy of comment or treatment; the presence of a medical condition that significantly affects
an individual’s daily activities; or the existence of chronic and substantial pain.” Hayes v. Snyder,
546 F.3d 516, 522-23 (7th Cir. 2008) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.
1997)); see also Foelker v. Outagamie Cnty., 394 F.3d 510, 512-13 (7th Cir. 2005) (“A serious
medical need is one that has been diagnosed by a physician as mandating treatment or one that is so

5

Dr. Shearing also contends that the settlement agreement entered in Harris, et al. v. Brown, et al., No.
07-cv-03225-HAB, in the United States District Court, Central District of Illinois, precludes Harris from pursing his
soy-diet claim. After reviewing the relevant provisions of the settlement agreement, the Court is not convinced that it
was intended to cover the claims in this lawsuit. As Harris points out, this suit was pending at the time the parties
entered into the settlement agreement, yet the release did not require Harris to dismiss this action; rather, it specifically
limited any release to the Central District case (see Doc. 240-8, pp. 2, 4). Accordingly, the Court does not find that
Harris’ deliberate indifference claim against Dr. Shearing is precluded by the relevant settlement agreement.

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obvious that even a lay person would easily recognize the necessity for a doctor’s attention.”).
A prisoner must also show that prison officials acted with a sufficiently culpable state of
mind, namely, deliberate indifference. “Deliberate indifference to serious medical needs of
prisoners constitutes the ‘unnecessary and wanton infliction of pain’.” Estelle, 429 U.S. at 104
(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). “The infliction of suffering on prisoners
can be found to violate the Eighth Amendment only if that infliction is either deliberate, or reckless
in the criminal law sense.” Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985).
Negligence, gross negligence, or even recklessness as that term is used in tort cases, is not enough.
Id. at 653; Shockley v. Jones, 823, F.2d 1068, 1072 (7th Cir. 1987). Put another way, the plaintiff
must demonstrate that the officials were “aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists” and that the officials actually drew that inference.
Greeno, 414 F.3d at 653. A plaintiff does not have to prove that his complaints were “literally
ignored,” but only that “the defendants’ responses were so plainly inappropriate as to permit the
inference that the defendants intentionally or recklessly disregarded his needs.” Hayes, 546 F.3d
at 524 (quoting Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000)).
With regard to the objective requirement, the Court finds that the medical condition at issue
is Hashimoto’s disease, which is a serious medical need insofar as it requires regular, and possibly
lifelong, treatment (Doc. 240-3 at 6-7). Indeed, Plaintiff testified that his condition causes him to
suffer from chronic constipation, severe bowel bleeding, hemorrhoids, low heart rate, and night
sweats. The Court’s analysis, however, does not end here. The Court must also consider
whether Dr. Shearing acted with deliberate indifference to Harris’ medical condition by denying
his request for a non-soy diet. Even when viewing the evidence in Harris’ favor, it is clear that
Dr. Shearing did not act with deliberate indifference.
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There is no evidence in the record before the Court to establish that the consumption of soy
exacerbated or contributed to Harris’ Hashimoto’s disease. Any such correlation is based on pure
speculation. Harris’ reliance on various studies cited in Harris v. Brown, 07-cv-3225, 2014 WL
4948229 (C.D. Ill., Sept. 30, 2014), is misplaced as the studies were not submitted in this case, did
not discuss Hashimoto’s disease in particular, have not been disclosed to Defendant, and were not
relied on by the Harris court in any of its conclusions. Indeed, the court merely indicated that
“even accepting these studies and the opinions of the plaintiffs’ experts, the most that can be said is
that the safety of soy is a topic of current debate and study and has been for some time.” Id. at
*3-4. In this case, the only evidence concerning the effect of soy on Harris’ Hashimoto’s disease
and hypothyroidism is Dr. Shearing’s testimony that there is no correlation (Doc. 240-3 at 7).
Because there is no evidence to demonstrate that Harris’ consumption of soy exacerbated or
contributed to the symptoms of his Hashimoto’s disease, Dr. Shearing did not act with deliberate
indifference to any substantial risk of harm in declining to provide Harris a non-soy diet. That
Harris was prescribed non-soy diets by other medical providers is neither relevant nor dispositive.
For these reasons, Dr. Shearing is entitled to judgment as a matter of law on Harris’ claim of
deliberate indifference.
Conclusion
For the foregoing reasons, the Motion for Summary Judgment filed by Dr. Shearing (Doc.
239) is GRANTED. Dr. Shearing is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.
DATED: February 14, 2018

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s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge

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