Johnson v. Shah et al

Filing 17

ORDER REFERRING CASE to Magistrate Judge Philip M. Frazier. Signed by Judge Staci M. Yandle on 3/4/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TAVARIS JOHNSON, #R-50459,
Plaintiff,
vs.
VIPEN SHAH,
SUZANN BAILEY,
THOMAS SPILLER,
MARCUS HARDY,
DIRECTOR OF IDOC, and
WEXFORD MEDICAL SOURCES,
Defendants.

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Case No. 15-cv-00815-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter is now before the Court for consideration of the first amended complaint
(Doc. 16) filed by Plaintiff Tavaris Johnson. Plaintiff brings this pro se action pursuant to
42 U.S.C. § 1983 for alleged violations of his constitutional rights at Pinckneyville Correctional
Center (“Pinckneyville”). In the first amended complaint, he claims that Pinckneyville officials
conspired to violate his rights under the Eighth and Fourteenth Amendments by serving inmates
only two meals each day and serving a diet that is high in soy. (Doc. 1 at 6-7). In connection
with these claims, Plaintiff sues the Illinois Department of Corrections’ director (IDOC director),
Marcus Hardy (IDOC deputy director), Thomas Spiller (Pinckneyville warden), Suzann Bailey
(Pinckneyville food services administrator), Vipen Shah (Doctor Shah) and Wexford Medical
Sources (“Wexford”) for monetary damages. (Id. at 8).
This case is now before the Court for a preliminary review of the first amended complaint
pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to promptly screen

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prisoner complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is
required to dismiss any portion of the complaint that is legally frivolous, malicious, fails to state
a claim upon which relief may be granted, or asks for money damages from a defendant who by
law is immune from such relief. 28 U.S.C. § 1915A(b). As discussed in more detail below, the
first amended complaint survives preliminary review under Section 1915A.
First Amended Complaint
Plaintiff raises two sets of claims against the defendants in his first amended complaint.
The first arises from Pinckneyville’s “two-meal-per-day” policy. The second arises from the soy
diet that is served at the prison. The Court will address each set of claims below.
“Two-Meal-Per-Day” Policy
According to the complaint, the IDOC Director, Deputy Director Hardy, Warden Spiller
and Doctor Shah conspired to violate Plaintiff’s rights under the Eighth and Fourteenth
Amendments by denying him breakfast. (Doc. 1 at 6). Each day, inmates at Pinckneyville are
served brunch from 10:00-10:30 a.m. and dinner from 4:00-4:30 p.m. Plaintiff maintains that the
two meals are nutritionally inadequate, but Doctor Shah will not order Plaintiff a higher calorie
diet. Instead, the doctor tells him to drink more water. Plaintiff must either wait up to eighteen
hours for his next meal or buy food from the prison commissary. As a result, he suffers from
weight loss, severe headaches and lethargy.
Plaintiff characterizes the decision to eliminate breakfast as punitive. Pinckneyville is a
disciplinary prison and it is also the only prison within the IDOC that serves no breakfast. At the
same time, the policy reflects a conspiracy to “line the pockets of high ranking officials with the
money the government gives [the prison] to serve (3) meals a day.” (Id.).

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Soy Diet
Plaintiff also claims that the IDOC Director, Deputy Director Hardy, Food Administrator
Bailey, Doctor Shah and Wexford conspired to violate his rights under the Eighth and Fourteenth
Amendments when they adopted a soy diet at the prison. (Id. at 6-7). The defendants know that
soy diets cause serious medical problems because female prisoners in Illinois allegedly prevailed
in a lawsuit that addressed this issue. (Id. at 7). Still, they insist on serving a soy diet to Plaintiff
and other prisoners. (Id.).
Plaintiff claims that the soy diet has caused him to suffer from severe constipation,
bloody stools, severe gas, headaches and fatigue. When he complained to Doctor Shah, the
doctor refused to order a soy-free diet. Plaintiff was instructed to stop eating the prison’s food
and buy it from the commissary instead. Plaintiff has repeatedly filed grievances to complain
about the diet and his related health issues.

However, the defendants have ignored his

complaints.
Merits Review Under 28 U.S.C. § 1915A
Based on the allegations, the Court finds it convenient to divide the pro se complaint into
the following six claims. The parties and the Court will use these designations in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court.
The designation of these counts does not constitute an opinion regarding their merit.
Count 1:

Eighth Amendment claim against Defendants IDOC Director,
Deputy Director Hardy, Warden Spiller, and Doctor Shah for
deliberate indifference to Plaintiff’s need for adequate food to meet
his nutritional needs.

Count 2:

Fourteenth Amendment claim against Defendants IDOC Director,
Deputy Director Hardy, Warden Spiller, and Doctor Shah for
ignoring Plaintiff’s grievances regarding the “two-meal-per-day”
policy.

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Count 3:

Conspiracy claim against Defendants IDOC Director,
Deputy Director Hardy, Warden Spiller, and Doctor Shah for
attempting to punish prisoners and profit from them by
implementing a “two-meal-per-day” policy at Pinckneyville.

Count 4:

Eighth Amendment claim against Defendants IDOC Director,
Deputy Director Hardy, Food Administrator Bailey, Doctor Shah,
and Wexford for endangering Plaintiff’s health by serving him a
soy diet.

Count 5:

Fourteenth Amendment claim against Defendants IDOC Director,
Deputy Director Hardy, Food Administrator Bailey, Doctor Shah,
and Wexford for ignoring Plaintiff’s grievances regarding his
adverse reaction to the prison’s soy diet.

Count 6:

Conspiracy claim against Defendants IDOC Director,
Deputy Director Hardy, Food Administrator Bailey, Doctor Shah,
and Wexford for adopting a soy diet at Pinckneyville.

Counts 1, 3, and 4 shall receive further review against those defendants who are
identified below in connection with each claim. However, all remaining claims, including
Counts 2, 5, and 6, shall be dismissed.
Claims Subject to Further Review
Count 1 - Inadequate Nutrition; Count 4 - Deliberate Indifference to Soy Diet
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). Prison conditions that deprive inmates of basic human needs, such as inadequate
nutrition, health, or safety, may constitute cruel and unusual punishment. Rhodes v. Chapman,
452 U.S. 337, 346 (1981); see also James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992).
Prison officials also violate the Eighth Amendment’s proscription against cruel and unusual
punishment when their conduct demonstrates “deliberate indifference to serious medical needs of
prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A medical condition need not be lifethreatening to be serious; rather, it can be a condition that would result in further significant
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injury or unnecessary and wanton infliction of pain if not treated. Gayton v. McCoy, 593 F.3d
610, 620 (7th Cir. 2010).
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 serious
harm. Farmer v. Brennan, 511 U.S. 825, 842, 847 (1994). Deliberate indifference is not
satisfied where the prison official was negligent or grossly negligent; the official must have acted
with the equivalent of criminal recklessness. Id. at 835-37.
The doctrine of respondeat superior is not applicable to § 1983 actions. 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)). To recover damages against a supervisory official, a § 1983 plaintiff
cannot rely on a theory of supervisory liability.

Perez v. Fenoglio, 792 F.3d 768, 777-78

(7th Cir. 2015) (citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). Instead, he must allege that
the defendant, through his or her own conduct, violated the Constitution. Id.
At this early stage, the complaint suggests that Plaintiff suffered serious side effects from
inadequate nutrition (Count 1) and the soy diet (Count 4) which satisfies the objective
component of his claims for screening purposes. The complaint also suggests that the defendants
may have responded to Plaintiff’s direct or written complaints with deliberate indifference.
Plaintiff complained directly to Doctor Shah about both issues, and he wrote several rounds of
grievances to each defendant. His complaints fell on deaf ears. In the Eighth Amendment
context, a prison official who is made aware of a prisoner’s lack of medical care for a serious
medical need, through a coherent and detailed grievance or some other correspondence, may be
deliberately indifferent where he or she fails to intervene on an inmate’s behalf and rectify the
situation. Perez, 792 F.3d at 777-78. An inmate’s “correspondence to a prison administrator

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may thus establish a basis for personal liability under § 1983 where that correspondence provides
sufficient knowledge of a constitutional deprivation.” Id. (citing Vance v. Peters, 97 F.3d 987,
992-93 (7th Cir. 1996)).
Given Plaintiff’s efforts to put the defendants on notice of his inadequate nutrition and
adverse reaction to soy, the Court cannot dismiss the deliberate indifference claims against the
defendants at this early juncture. Therefore, Counts 1 and 4 shall proceed. More specifically,
the Court will allow Count 1 to proceed against Defendants IDOC Director, Deputy Director
Hardy, Warden Spiller and Doctor Shah and Count 4 to proceed against Defendants IDOC
Director, Deputy Director Hardy, Food Administrator Bailey and Doctor Shah. However,
Wexford shall be dismissed without prejudice from this action. A corporate entity will incur
liability in a civil rights action only where it established a policy that directly caused the
constitutional violation. See Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 927 (7th
Cir. 2004) (corporation can be held liable for deliberate indifference only if it had a policy or
practice that caused the violation). In the context of Section 1983, a private corporation that
performs functions on behalf of the state is “acting under color of state law,” and is treated the
same as a municipal entity. See Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 766 n. 6
(7th Cir. 2002). In the complaint, Plaintiff does not allege that Wexford was responsible for the
policy of providing Plaintiff with only two meals per day or a soy diet. Further, there is no
allegation suggesting that any individual acted or failed to act as a result of such a policy
espoused by Wexford. Therefore, Counts 1 and 4 cannot proceed against Wexford.
Counts 3 - Conspiracy
The Court will also allow the conspiracy claim in Count 3 to proceed against Defendants
IDOC Director, Deputy Director Hardy, Warden Spiller, and Doctor Shah at this stage.

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According to the amended complaint, these defendants conspired to punish prisoners at
Pinckneyville by depriving them of adequate nutrition. 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). “[I]t is enough in pleading a conspiracy merely to
indicate the parties, general purpose, and approximate date . . . .” Walker v. Thompson, 288 F.3d
1005, 1007-08 (7th Cir. 2002). See also Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003);
Tierney v. Vahle, 304 F.3d 734, 740 (7th Cir. 2002). Although the Court takes no position
regarding the merits of this claim, the Court cannot dismiss it at this time. Accordingly, Count 3
shall proceed against Defendants IDOC Director, Deputy Director Hardy, Warden Spiller and
Doctor Shah.
Claims Subject to Dismissal
Counts 2 and 5 – Due Process
The complaint fails to articulate a Fourteenth Amendment claim (Counts 2 and 5) against
the defendants. It is not clear why the complaint even refers to the Fourteenth Amendment.
However, to the extent that these claims arise from the defendants’ failure to respond to
Plaintiff’s grievances, both claims fail.
Prison grievance procedures are not constitutionally mandated and thus do not implicate
the Due Process Clause per se.

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). In other words, no due process claim arises from the fact
that the defendants may have ignored, delayed, or mishandled Plaintiff’s grievances. Counts 2

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and 5 shall therefore be dismissed with prejudice for failure to state a claim upon which relief
may be granted.
Count 6 – Conspiracy
The conspiracy claim in Count 6 fails and shall be dismissed without prejudice.
According to the amended complaint, the defendants conspired to violate Plaintiff’s rights by
giving him a soy diet. (Doc. 1 at 6-7). However, Plaintiff offers no allegations explaining the
purpose of the conspiracy or the existence of any agreement by the defendants. Even at this
early stage, he cannot proceed with a claim that relies entirely on conclusory legal statements and
vague factual allegations. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (courts “should not
accept as adequate abstract recitations of the elements of a cause of action or conclusory legal
statements.”). Therefore, Count 6 shall be dismissed without prejudice for failure to state a
claim upon which relief may be granted.
Disposition
IT IS HEREBY ORDERED that COUNTS 2 and 5 are DISMISSED with prejudice
from this action for failure to state a claim upon which relief may be granted, and COUNT 6 is
DISMISSED without prejudice for the same reason.
IT IS FURTHER ORDERED that Defendant WEXFORD MEDICAL SOURCES is
DISMISSED without prejudice.
With respect to COUNTS 1, 3, and 4, the Clerk of Court shall prepare for
DEFENDANTS IDOC DIRECTOR, MARCUS HARDY, THOMAS SPILLER, VIPEN
SHAH, and SUZANN BAILEY: (1) Form 5 (Notice of a Lawsuit and Request to Waive
Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is
DIRECTED to mail these forms, a copy of the amended complaint, and this Memorandum and

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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. 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.

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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: March 4, 2016
s/ STACI M. YANDLE
U.S. District Judge

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