Williams v. Arbuckle et al

Filing 6

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. COUNT 4 is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. Defendant WEXFORD HEALTH SOURCES, INC. is DISMISSED from this action without prejudice. Defendants RAY, STRUBHART, and HODGES are DISMISSED from this action with prejudice. Signed by Judge J. Phil Gilbert on 11/24/2014. (beb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
WARREN WILLIAMS, # M-40803,
Plaintiff,
vs.
ARBUCKLE, HORVEY,
WEXFORD HEALTH SOURCES, INC.,
COUNSELOR RAY,
J. STRUBHART, DENSMORE,
WARDEN MARC HODGES,
and DUNCAN,
Defendants.

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Case No. 14-cv-1289-JPG

MEMORANDUM AND ORDER
GILBERT, 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. He claims that Defendants
have failed to accommodate his need for a special diet due to his severe food allergies, with
deliberate indifference to his health and safety. Along with his complaint, Plaintiff has filed a
motion for preliminary injunction and/or temporary restraining order (“TRO”) (Doc. 4).
According to the complaint, Plaintiff has been diagnosed with allergies to beans and
eggs, and his allergies were documented in his prison medical records before he was transferred
to Lawrence on December 9, 2013 (Doc. 1, p. 10). Plaintiff informed Defendant Nurse Arbuckle
of his food allergies the day he arrived at Lawrence. On December 14, 2013, Plaintiff put in a
sick call request so that he could ask a nurse for a special diet. He saw Defendant Arbuckle, but
she did nothing and told Plaintiff to write to the chaplain about his dietary requests. Plaintiff
informed another unidentified nurse and several correctional officers about his allergies.
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On December 27, 2013, Plaintiff wrote an emergency grievance requesting a special diet
free of eggs and beans, and asking for a supply of Benadryl in case he were to accidentally ingest
those foods (Doc. 1-1, pp. 38-39). He had been losing weight due to his efforts to avoid eating
any food with eggs or beans, which are frequently served.
On December 28, 2013, Plaintiff was served a food tray containing what he thought was
sloppy joe, so he ate it. Soon he began to sweat, his throat throbbed and swelled up, he began to
have hot flashes and problems breathing, and he vomited multiple times (Doc. 1, p. 11).
Defendant Nurse Horvey gave him Benadryl to treat his allergic reaction to the beans in the
“sloppy joe.” Later that evening, Plaintiff again asked Defendant Arbuckle to let him see a
doctor to get a special food order. She refused to give him a doctor referral, as she had done
continually since December 9, 2013. However, on December 29, Defendant Horvey issued a
“therapeutic diet order” for Plaintiff to get a special diet without eggs or beans (Doc. 1, p. 12;
Doc. 1-1, p. 13).
Plaintiff continued to be served food trays containing eggs and/or beans, and he spoke to
Dr. Coe and LPN Baker (neither is a Defendant) about his allergies. His special diet was
approved on January 29, 2014. After that, Plaintiff started getting special trays. However, his
food trays still contained eggs or beans from time to time. On April 13, 2014, he got a tray with
beans and sent it back. His replacement tray had cornbread, which gave him a minor allergic
reaction. Plaintiff continued to get inadequate trays, so he wrote to Defendant Densmore (dietary
supervisor) asking him to correct the problem.
On July 4, 2014, while the prison was on lockdown, Plaintiff was given a tray marked
“no beans-no eggs.” He ate potatoes from the tray and then realized that eggs were hidden under
the potatoes. He started vomiting repeatedly and began to sweat, itch, and have trouble breathing

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because his throat was throbbing (Doc. 1, p. 14). He was escorted to the Health Care Unit in
handcuffs, and was left alone in a room where he lay on the floor and continued to vomit.
Defendant Nurse Horvey observed his condition but put off treating him while she continued to
talk to the correctional officers. About 35-45 minutes later, Plaintiff tried to get up to see what
was taking so long, but fell down and hit his head on the floor. He was finally taken to an
examination room, where Defendant Horvey chastised him for eating the eggs and was verbally
hostile to him, blaming him for his condition. She examined him and then sent him to a holding
cell. Eventually, she gave him an injection of Benadryl. Plaintiff alleges she intentionally
delayed his treatment despite her awareness of his life-threatening illness (Doc. 1, p. 16).
Plaintiff filed a grievance over Defendant Densmore’s failure to ensure that his meals
were free of eggs and beans, and over Defendant Horvey’s failure to properly treat him. He also
wrote to Densmore to complain about the continuing problem of receiving food to which he was
allergic.
In August 2014, Plaintiff was sent to punitive segregation for allegedly assaulting a staff
member. While he was there, he continued to get trays that were marked “no eggs-no beans” but
still contained those foods. Some days he would not eat because prison staff told him he would
not get the right food because he was a staff assaulter. Plaintiff wrote another grievance on
August 20, 2014, complaining about Defendant Densmore’s continuing disregard of his food
allergies which placed him at risk of serious harm. Defendant Densmore has ignored Plaintiff’s
request slips about his diet and continues to send him trays with eggs and beans.
Again on October 24, 2014, Plaintiff had another allergic reaction due to Defendant
Densmore’s failure to adhere to Plaintiff’s dietary orders. The tray was marked “no eggs-no
beans,” but in fact contained beans which Plaintiff unknowingly consumed (Doc. 1, p. 20).

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Plaintiff’s “emergency” grievances were deemed non-emergency by Defendants Hodges
and Duncan (the former and current wardens). When the grievances were submitted through the
regular channels, they were not answered or were rejected as untimely.

Plaintiff blames

Defendants Strubhart and Ray for failing to timely address the grievances and failing to resolve
the problems with his food.
Finally, Plaintiff asserts that the “Private Corporate Defendant” (by which the Court
presumes he means Defendant Wexford Health Sources, Inc.) is responsible for policies,
customs, or practices of failing to adequately train or supervise the Lawrence nurses, who denied
and delayed his medical treatment as a result (Doc. 1, p. 19).
Plaintiff seeks injunctive relief to prevent Defendant Densmore from violating his dietary
orders in the future, or alternatively to be transferred to another prison that will adequately treat
his medical needs. He also requests damages.
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.
Accepting Plaintiff’s allegations as true, the Court finds that Plaintiff has articulated the
following colorable federal causes of action, which shall receive further review:
Count 1: Eighth Amendment deliberate indifference to medical needs claim
against Defendant Arbuckle, for refusing to refer Plaintiff to a doctor or take other
steps to provide him with a diet free from eggs and beans;
Count 2: Eighth Amendment deliberate indifference to medical needs claim
against Defendant Horvey, for intentionally delaying treatment and allowing
Plaintiff to suffer after he had an allergic reaction on July 4, 2014;
Count 3: Eighth Amendment deliberate indifference to medical needs claim
against Defendant Densmore, for continuing to include beans and eggs in
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Plaintiff’s meals after being informed several times that these foods were
dangerous to Plaintiff’s health.
However, Plaintiff’s allegations regarding the mishandling of his grievances by
Defendants Ray, Strubhart, Hodges, and Duncan (Count 4) shall be dismissed for failure to state
a claim upon which relief may be granted. Defendant Wexford Health Sources, Inc., shall also
be dismissed from the action.
Counts 1 & 2 – Deliberate Indifference to Medical Needs by Health Care Providers
In order to state a claim for deliberate indifference to a serious medical need, an inmate
must show that he (1) suffered from an objectively serious medical condition; and (2) that the
defendant was deliberately indifferent to a risk of serious harm from that condition. “Deliberate
indifference is proven by demonstrating that a prison official knows of a substantial risk of harm
to an inmate and either acts or fails to act in disregard of that risk. Delaying treatment may
constitute deliberate indifference if such delay exacerbated the injury or unnecessarily prolonged
an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012) (internal citations and
quotations omitted). The Eighth Amendment does not give prisoners entitlement to “demand
specific care” or “the best care possible,” but only requires “reasonable measures to meet a
substantial risk of serious harm.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Further, a
defendant’s inadvertent error, negligence or even ordinary malpractice is insufficient to rise to
the level of an Eighth Amendment constitutional violation. See Duckworth v. Ahmad, 532 F.3d
675, 679 (7th Cir. 2008).
Plaintiff’s food allergies certainly qualify as an “objectively serious” condition that poses
a risk of harm to his health. Further factual development is necessary in order to determine
whether Defendants Arbuckle and/or Horvey were deliberately indifferent to Plaintiff’s medical
needs, or were merely negligent or rendered substandard care.
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Plaintiff may proceed on his claims against Defendants Arbuckle and Horvey, however,
he has failed to state a claim upon which relief may be granted against Defendant Wexford
Health Sources, Inc. (“Wexford”). Defendant Wexford is a corporation that employs Defendants
Arbuckle and Horvey and provides medical care at the prison, but it cannot be held liable solely
on that basis. A corporation can be held 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’s complaint gives lip service to this legal standard, but the
factual allegations fail to indicate that a policy or practice of Wexford caused Defendant
Arbuckle to refuse Plaintiff’s dietary accommodation, or caused Defendant Horvey to delay his
medical treatment. Defendant Wexford shall therefore be dismissed from the action without
prejudice.
Count 3 – Deliberate Indifference – Defendant Densmore
As with the medical providers, the complaint shows that Plaintiff’s had a serious medical
condition and that he made Defendant Densmore aware of the severe risk to his health if he
continued to be fed meals containing beans or eggs. In order to prevail on his deliberate
indifference claim, Plaintiff will have to show that Defendant Densmore’s conduct as the dietary
supervisor was more culpable than mere negligence. The deliberate indifference standard is
satisfied if a plaintiff shows that the defendant prison official acted or failed to act despite the
official’s knowledge of a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825,
842 (1994). Plaintiff may also proceed with his claim in Count 3.

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Dismissal of Count 4 – Mishandling of Grievances
In order to be held individually liable in a civil rights action, “a defendant must be
‘personally responsible for the deprivation of a constitutional right.’” Sanville v. McCaughtry,
266 F.3d 724, 740 (7th Cir. 2001) (citations omitted) (quoting Chavez v. Ill. State Police, 251
F.3d 612, 651 (7th Cir. 2001)). Clearly, Defendants Ray, Strubhart, Hodges, and Duncan were
not directly involved in preparing Plaintiff’s food trays. These Defendants’ involvement was
limited to the review of Plaintiff’s grievances filed to complain about Defendant Densmore and
the nurses who failed to address his food-allergy-related needs. The Seventh Circuit instructs
that 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). This is true even if, as Plaintiff points out, they could have prevented further problems
had they promptly responded to the grievances or resolved them in his favor. Accordingly,
Count 4 shall be dismissed, as will Defendants Ray, Strubhart, and Hodges.
For the above reasons, Plaintiff fails to state a constitutional claim upon which relief may
be granted against Defendant Duncan (the current warden) for his handling of the emergency
grievance(s). However, because Plaintiff is seeking injunctive relief, Defendant Warden Duncan
shall remain in the action, in his official capacity only. 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).

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Pending Motion for Preliminary Injunction and/or Temporary Restraining Order (Doc. 4)
A temporary restraining order (“TRO”) is an order issued without notice to the party to
be enjoined that may last no more than fourteen days. FED. R. CIV. P. 65(b)(2). A TRO may
issue without notice only if “specific facts in an affidavit or a verified complaint clearly show
that immediate or irreparable injury, loss, or damage will result to the movant before the adverse
party can be heard in opposition.” FED. R. CIV. P. 65(b)(1)(A). Such injunctive relief is also
warranted “to prevent a substantial risk of serious injury from ripening into actual harm.”
Farmer v. Brennan, 511 U.S. 825, 845 (1994).
In contrast, a preliminary injunction is issued only after the adverse party is given notice
and an opportunity to oppose the motion.

FED. R. CIV. P. 65(a)(1).

In order to obtain

preliminary injunctive relief, Plaintiff must demonstrate that: (1) his underlying case has some
likelihood of success on the merits; (2) no adequate remedy at law exists, and; (3) Plaintiff will
suffer irreparable harm without the injunction. Woods v. Buss, 496 F.3d 620, 622 (7th Cir.
2007). If those three factors are shown, the district court must then balance the harm to each
party and to the public interest from granting or denying the injunction. Id.; Korte v. Sebelius,
735 F.3d 654, 665 (7th Cir. 2013); Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).
Upon preliminary review, the Court finds that Plaintiff’s motion warrants prompt
consideration. Accordingly, Plaintiff’s request for a preliminary injunction/TRO (Doc. 4) shall
be REFERRED pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c) to a United States
Magistrate Judge, who shall resolve the request as soon as practicable and issue a report and
recommendation. If it becomes apparent that further action is necessary, the undersigned Judge
should be notified immediately. Any motions filed after the date of this Order that relate to this
request for injunctive relief or seek leave to amend the complaint are also hereby REFERRED

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to the United States Magistrate Judge.
Other Pending Motions
The motion for leave to proceed in forma pauperis (“IFP”) (Doc. 2) shall be addressed in
a separate order by the undersigned Judge.
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall also be referred to the United
States Magistrate Judge for further consideration.
Disposition
COUNT 4 is DISMISSED with prejudice for failure to state a claim upon which relief
may be granted. Defendant WEXFORD HEALTH SOURCES, INC. is DISMISSED from
this action without prejudice.

Defendants RAY, STRUBHART, and HODGES are

DISMISSED from this action with prejudice.
The Clerk of Court is directed to complete, on Plaintiff’s behalf, a summons and form
USM-285 for service of process on Defendants ARBUCKLE, HORVEY, DENSMORE, and
DUNCAN. The Clerk shall issue the completed summonses, and prepare a service packet for
each Defendant consisting of: the completed summons, the completed form USM-285, a copy of
the complaint (Doc. 1), and this memorandum and order. The Clerk shall deliver the service
packets for the Defendants to the United States Marshal Service for personal service on each
Defendant.
Pursuant to Federal Rule of Civil Procedure 4, within 14 days of the date of this Order
(on or before December 8, 2014), the United States Marshals Service SHALL personally
serve upon Defendants ARBUCKLE, HORVEY, DENSMORE, and DUNCAN the service
packets containing the summons, form USM-285, a copy of the complaint (Doc. 1), and this
memorandum and order. All costs of service shall be advanced by the United States, and the

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Clerk shall provide all necessary materials and copies to the United States Marshals Service.
The Court will not require Defendants to pay the full costs of formal service, as the Court is
ordering personal service to expedite the resolution of Plaintiff’s motion for preliminary
injunctive relief.
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 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c), this action is REFERRED
to a United States Magistrate Judge for further pre-trial proceedings, including the resolution of
Plaintiff’s request for a preliminary injunction (Doc. 4) as soon as practicable, to include a report
and recommendation. If it becomes apparent that further action is necessary, the undersigned
Judge should be notified immediately. The pending motion for recruitment of counsel (Doc. 3)
is also referred to the United States Magistrate Judge for disposition.
Further, this entire matter shall be REFERRED to the United States Magistrate Judge 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, even if his application

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to proceed in forma pauperis is 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: November 24, 2014
s/J. Phil Gilbert
United States District Judge

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