Urrutia v. Shah et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. If he intends to proceed with this action, Plaintiff is hereby ORDERED to provide the Court with a filing fee of $400.00 or a properly completed IFP Motion on or before December 28, 2015. Signed by Chief Judge Michael J. Reagan on 12/11/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARK URRUTIA, #B-37120,
Plaintiff,
vs.
ILLINOIS DEPT. OF CORRECTIONS
DIRECTOR, WARDEN LASHBROOK,
VIPEN SHAH and SUZANN BAILEY,
Defendants.

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Case No. 15-cv-01266-MJR

MEMORANDUM AND ORDER
REAGAN, Chief Judge:
Plaintiff Mark Urrutia is currently incarcerated at Pinckneyville Correctional Center
(“Pinckneyville”). He brings this action pursuant to 42 U.S.C. § 1983 against four defendants,
including the Director of the Illinois Department of Corrections (“IDOC”), Vipen Shah (doctor),
Suzann Bailey (food service administrator), and Warden Lashbrook (Pinckneyville’s warden).
In the complaint (Doc. 1) and exhibits 1 (Docs. 5, 7, 9), Plaintiff claims that the defendants
adopted a cost-saving policy of serving inmates a soy-based diet at Pinckneyville, despite the
known, negative health consequences associated with the diet.
Plaintiff has consumed a soy-based diet at Pinckneyville since May 12, 2014. (Id.).
Since then, he has begun to suffer from a number of health problems that he attributes to the diet.

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After filing his complaint on November 13, 2015 (Doc. 1), Plaintiff filed three sets of exhibits to the
complaint on November 18th (Doc. 5), November 19th (Doc. 7), and November 23rd (Doc. 9). Although
the Court normally rejects piecemeal amendments to a complaint, the exhibits are clearly intended to
supplement rather than amend the complaint. Further, the Court received them before conducting its
threshold review of this matter pursuant to 28 U.S.C. § 1915A. Accordingly, this order addresses
Documents 1, 5, 7, and 9, as though all four were filed together as a single complaint. Any future
amendments to the complaint must comply with Rule 15 of the Federal Rules of Civil Procedure.
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These problems include prolonged periods of constipation and flatulence, punctuated by severe
bouts of diarrhea and bloody stools. Plaintiff suffers from lethargy. He has also grown breasts.
Although he has filed grievances with each of the defendants to complain about the soy
diet and its adverse impact on his health, Plaintiff’s complaints have fallen on deaf ears. (Id.).
In response to his specific request for medical treatment, Doctor Shah refused to order Plaintiff a
non-soy diet. Instead, Doctor Shah told him to “drink more water” or buy different food from
the prison’s commissary. (Id.).
Plaintiff now claims that the defendants conspired to violate his rights under the Eighth
and Fourteenth Amendments by implementing the soy diet at Pinckneyville and disregarding his
complaints about its impact on his health. (Id. at 6). He seeks compensatory and punitive
damages from all four defendants. (Id.).
This case is now before the Court for preliminary review of the complaint pursuant to
28 U.S.C. § 1915A.

Under § 1915A, the Court is required to promptly screen 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). The complaint survives preliminary review
under this standard.
Discussion
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court has
organized the claims in Plaintiff’s pro se complaint into the following three (3) counts:

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Count 1:

Defendants, acting in conspiracy with one another, endangered
Plaintiff’s health by serving a soy-based diet at Pinckneyville in
violation of the Eighth Amendment;

Count 2:

Defendants responded to Plaintiff’s particular diet-related
health complaints with deliberate indifference, in violation of
the Eighth Amendment;

Count 3:

Defendants violated Plaintiff’s rights under the Fourteenth
Amendment.

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 – Soy Diet Policy
Plaintiff’s claim (Count 1) that the defendants endangered his health by adopting a soy
diet at Pinckneyville is subject to further review.

This claim arises under the Eighth

Amendment, which protects prisoners from cruel and unusual punishment. U.S. CONST., amend.
VIII. See also Berry v. Peterman, 604 F.3d 435, 439 (7th Cir. 2010). Eighth Amendment
protections extend to conditions of confinement that pose a substantial risk of serious harm to an
inmate’s health and safety. Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984 (7th Cir.
2012).

Under the Eighth Amendment, prison officials are required to serve inmates

“nutritionally adequate food that is prepared and served under conditions which do not present an
immediate danger to the health and well-being of the inmates who consume it.” See French v.
Owens, 777 F.2d 1250, 1255 (7th Cir. 1985). A prison official who knows of a risk of serious
harm to an inmate’s health and responds with deliberate indifference, by disregarding the risk or
failing to take reasonable steps to abate it, may be liable under the Eighth Amendment.
Farmer v. Brennan, 511 U.S. 825, 847 (1994).

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The allegations in the complaint suggest that the defendants adopted a soy diet at
Pinckneyville in order to save money, despite being aware of the negative health consequences
associated with the diet. (Doc. 1 at 5). Plaintiff maintains that the diet endangered his health and
caused him to suffer from chronic constipation, diarrhea, and other symptoms. At this early
stage, the Court will allow him to proceed with Count 1 against all of the defendants on this
basis.
However, that aspect of Count 1 involving a conspiracy claim shall be dismissed.
Claims of conspiracy require a plaintiff to “demonstrate that the conspirators have an agreement
to inflict injury or harm upon him.” Sow v. Fortville Police Dep’t, 636 F.3d 293, 304-05
(7th Cir. 2011). The existence of an agreement may be inferred from circumstantial evidence,
“but only if there is sufficient evidence that would permit a reasonable jury to conclude that a
meeting of the minds had occurred and that the parties had an understanding to achieve the
conspirator’s objectives.” Id. at 305 (quoting Hernandez v. Joliet Police Dep’t, 197 F.3d 256,
263 (7th Cir. 1999)). The mere mention of a conspiracy does not satisfy this standard.
A litigant must instead plead sufficient facts to support a “plausible” claim against the
defendants. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (litigants must provide a minimum
level of “factual content” to state a claim “that is plausible on its face.”). Plaintiff offers no
factual support for the conspiracy claim and therefore fails to satisfy even this basic standard.
See also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Allegations of a “vast,
encompassing” conspiracy, like the one mentioned in the complaint, “must meet a high standard
of plausibility” in order to state a claim under Rule 8 of the Federal Rules of Civil Procedure.
Cooney v. Rossiter, 583 F.3d 967, 971 (7th Cir. 2009).
conspiracy in passing, without more, will not suffice.

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Therefore, merely alluding to a

Because the Court is allowing Plaintiff to proceed with Count 1 against all four
defendants, the conspiracy claim adds nothing. See Jones v. City of Chicago, 856 F.2d 985, 992
(7th Cir. 1988) (noting that the “function of the conspiracy doctrine” in § 1983 cases “in merely
to yoke particular individuals to specific torts alleged in the complaint”). Accordingly, Count 1,
absent any conspiracy claim, shall proceed against all four defendants.
Count 2 – Denial of Medical Treatment
Plaintiff also claims that the defendants ignored his diet-related health complaints, in
violation of the Eighth Amendment (Count 2). Prison officials violate the Eighth Amendment’s
proscription against cruel and unusual punishment when they exhibit “deliberate indifference to
serious medical needs of prisoners.”

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

When assessing the seriousness of the medical condition, it is not necessary that the condition be
life-threatening. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Rather, it can be a
condition that would result in further significant injury or unnecessary and wanton infliction of
pain if left untreated. Id.
A prison official may be liable for deliberate indifference to a serious medical need, if he
knows that the inmate faces a “substantial risk of serious harm and disregards that risk by failing
to take reasonable measures to abate it.”

Farmer, 511 U.S.at 847.

Proving deliberate

indifference requires more than a showing of negligent or even grossly negligent behavior. Id. at
835-37. The official must have acted with the equivalent of criminal recklessness. Id.
The symptoms that Plaintiff described in the complaint are sufficiently serious to support
Count 2 for screening purposes. However, the only defendant who arguably responded with
deliberate indifference to Plaintiff’s request for treatment was Doctor Shah, who told Plaintiff to
“drink more water” and buy food from the commissary in response to Plaintiff’s single direct

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request for medical treatment. (Id. at 5). The complaint lacks sufficient allegations against the
IDOC Director, Suzann Bailey, and Warden Lashbrook to support a deliberate indifference claim
against them. Twombly, 550 U.S. at 570. The complaint alleges that these defendants “refused
to answer [his] soy related request and grievances.” (Id. at 5). The grievances he filed as
exhibits to the complaint were prepared less than a week before he commenced this action and
are not even addressed to the IDOC Director or Suzann Bailey.

(Docs. 5, 7, 9).

Absent additional allegations regarding the timing and substance of specific requests for
treatment to these individuals, Count 2 cannot proceed against them. Under the circumstances,
Count 2 shall only proceed against Doctor Shah and be dismissed without prejudice against all
other defendants.
Count 3 – Fourteenth Amendment Claim
In addition, Plaintiff’s Fourteenth Amendment claim (Count 3) does not survive
screening and shall be dismissed.

In the complaint, Plaintiff refers to the Fourteenth

Amendment, but he does not explain why.

To the extent that this claim arises from the

defendants’ failure to respond to Plaintiff’s grievances, it is subject to dismissal.
Prison grievance procedures are not constitutionally mandated and thus do not implicate the
Due Process Clause per se. As such, the alleged mishandling of grievances “by persons who
otherwise did not cause or participate in the underlying conduct states no claim” upon which
relief may be granted. 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). Put differently, the fact that the
defendants may have ignored Plaintiff’s grievances does not give rise to a due process claim
against them, even at this early stage. To the extent that Count 3 refers to some other legal basis

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for relief, Plaintiff has not included sufficient allegations to support a claim against any
particular defendant.

Twombly, 550 U.S. 544, 570 (2007).

Either way, Count 3 shall be

dismissed without prejudice for failure to state a claim upon which relief may be granted.
Pending Motions
Plaintiff has filed a motion for recruitment of counsel (Doc. 2), which shall be referred to
United States Magistrate Judge Stephen C. Williams for a decision.
Plaintiff has also filed a motion for service of process (Doc. 3), which is hereby
GRANTED.
Filing Fee / IFP Motion
This case was opened without payment of a filing fee or the filing of a Motion and
Affidavit to Proceed in District Court Without Prepaying Fees or Costs (“IFP Motion”).
On November 13, 2015, the Clerk of this Court sent Plaintiff a letter advising him of this fact
(Doc. 4). He was instructed to pay the full $400.00 filing fee or file a properly complete
IFP Motion within thirty days, or this case would be subject to dismissal. He was also instructed
to file a trust fund account statement (or institutional equivalent) for the six-month period
preceding commencement of this action (i.e., May 1, 2015 – November 13, 2015). To date,
Plaintiff has not paid his filing fee or filed an IFP Motion with a trust fund account statement for
the requisite time period.
If he intends to proceed with this action, Plaintiff is hereby ORDERED to provide the
Court with a filing fee of $400.00 or a properly completed IFP Motion on or before December
28, 2015. If Plaintiff files an IFP Motion, the Court must review Plaintiff’s trust fund account
statement for the six-month period immediately preceding the filing of this action.
Thus, Plaintiff must have the Trust Fund Officer at his facility complete the attached certification

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and provide a copy of his trust fund account statement (or institutional equivalent) for the period
5/1/2015 to 11/13/15, if it has not already been filed with the Court. This information should be
mailed to the Clerk of Court at the following address: United States District Court – Southern
District of Illinois, 750 Missouri Avenue, East St. Louis, Illinois 62201. The Clerk has already
provided Plaintiff with a blank IFP Motion, along with Doc. 4, and will not need to send another
IFP Motion at this time.
Failure to comply with this Order shall result in dismissal of this action for want of
prosecution and/or for failure to comply with a court order under Federal Rule of Civil
Procedure 41(b).
Disposition
IT IS ORDERED that COUNT 1 (to the extent it addresses a conspiracy claim) and
COUNT 3 are DISMISSED without prejudice for failure to state a claim upon which relief may
be granted.
With respect to COUNTS 1 and 2, the Clerk of Court shall prepare for DEFENDANTS
ILLINOIS

DEPARTMENT

OF

CORRECTIONS’

DIRECTOR,

WARDEN

LASHBROOK, 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 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.

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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 Stephen C. Williams for further pre-trial proceedings, including a decision on the motion
for recruitment of counsel (Doc. 3).

Further, this entire matter shall be REFERRED to

United States Magistrate Judge Williams 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, regardless of whether
his application 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

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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: December 11, 2015

s/ MICHAEL J. REAGAN
Chief Judge
United States District Court

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