Wright v. Schulze et al

Filing 8

ORDER DISMISSING CASE without prejudice. Plaintiff is ADVISED that this dismissal shall count as one of his three allotted strikes under the provisions of 28 U.S.C. § 1915(g). Signed by Judge J. Phil Gilbert on 1/6/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DARRIN WRIGHT,
Plaintiff,
vs.
CLARK SCHULZE,
MAJOR GARRETT,
KAREN UNDERWOOD,
CARLA KENABLE,
CRAIG FOSTER,
DR. CALDWELL,
UNKNOWN PARTY, and
AMY BECK
Defendants.

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Case No. 3:15-cv-01364-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Darrin Wright is currently incarcerated at Vandalia Correctional Center
(“Vandalia”). Proceeding pro se, Plaintiff has filed a civil rights complaint pursuant to 42 U.S.C.
§ 1983 against several Vandalia employees. He seeks monetary and specific relief. (Doc. 1 at
13.)
This matter is now before the Court for a preliminary review of Plaintiff’s complaint
pursuant to 28 U.S.C. § 1915A. Under § 1915A, the Court shall review a “complaint in a civil
action in which a prisoner seeks redress from a governmental entity or officer or employee of a
government entity.” During this preliminary review under § 1915A, the Court “shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint,” if the complaint “is
frivolous, malicious, or fails to state a claim on which relief may be granted” or if it “seeks
monetary relief from a defendant who is immune from such relief.”

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Background
Plaintiff’s complaint is composed of five sections, respectively titled “Food,” “Clothing,”
“Law Library,” “Racial Discrimination,” and “Due Process Violation.” In the “Food” section,
Plaintiff, who is a diabetic, alleges that on March 30, 2015, he requested a “medical diet” from
Dr. Caldwell, owing to the fact that “all [the prison] serve [sic.] is pasta and sugary stuff.” Dr.
Caldwell, however, denied his request and informed Plaintiff that he was not going to include
that he made such a request in his medical records because the food required to maintain such a
diet is not available in Vandalia. Plaintiff then wrote a request to the prison kitchen and to the
warden, Craig Foster, but received no responses. He inquired as to the lack of medical diets for
diabetic inmates to a food service employee (identified merely by the last name “Torbeck”),1
who informed Plaintiff that he “get[s] the same shit as everybody else.”
Also under the “Food” section, Plaintiff complains that, due to lack of capacity, inmates
are rushed in and out of the chow hall with little time to sit down and eat. Many are even forced
to eat while they are leaving the chow hall. But, he alleges, inmates who deliver coffee, tea, and
ice water to correctional officers are allowed to eat in the officers’ kitchen and given additional
time. Plaintiff also notes that the food available to Vandalia’s inmates is usually “soy beans,
pasta, and sugar”; there is very rarely any fresh fruit available to eat.
Under the “Clothing” section, Plaintiff decries the denial of “constitutionally proper
clothing.” Plaintiff complains about three different events in this section. First, Plaintiff alleges
that he was given a short-sleeved “summer shirt” during the winter, even though the temperature
reaches below zero degrees Fahrenheit during such time. Second, he states that the officer in
charge of the clothing room denied his request for thermal underwear. Lastly, Plaintiff complains

1

Torbeck is referenced in the body of the complaint, but not in the complaint’s caption or “Jurisdiction” section.
Therefore, the Court does not consider Torbeck to be a party to this action.

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that he was unable to acquire new boots. His current boots were old, and holes were forming in
their soles. Plaintiff told the officer in charge of the clothing room that he needs to keep his feet
dry because he is a diabetic. The officer told him to check with the medical department. At the
medical department, Dr. Caldwell merely told Plaintiff to check with the clothing room. Dr. E.
Afuwape2 also refused Plaintiff’s request.
The complaint’s “Law Library” section alleges that three different individuals at three
different times denied Plaintiff access to the law library and legal supplies. The first of these
individuals, Karen Underwood, did not allow Plaintiff use of the law library’s paper or
typewriter, instead telling him to buy the supplies he needed at the commissary. She only
allowed Plaintiff to use ink pens, but he had to return them. Underwood also denied Plaintiff
“copywork,” by which the Court assumes the Plaintiff means use of a copy machine. Plaintiff
also broadly alleges that Carla Kenable denied him access to the law library, and that she refused
to make copies for him. The third individual, Amy Beck, told Plaintiff he could only use the law
library typewriter in conjunction with appeals for clemency. When Plaintiff told her to just give
him paper, she allegedly said, “you’re not going to type anyway.” The Court assumes this means
Beck did not give Plaintiff paper. Beck also denied Plaintiff access to the DVD transcript of one
of his court proceedings and, in response to a request for copies, told him he was “a pain in [her]
ass.”
Also under the “Law Library” section, Plaintiff states that his appeal in another case was
dismissed for lack of prosecution because the law library closed at some point. He does not
elaborate.

2

As with Torbeck, see supra, note 1, because Dr. Afuwape is not referenced in the complaint’s caption or
“Jurisdiction” section, the Court does not consider him to be a party to this action.

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Under the “Racial Discrimination” heading, Plaintiff states that Defendant Major Garrett
made racially-charged statements to Plaintiff when he did not move fast enough in line at the
milk spout in the kitchen. Specifically, Garrett told Plaintiff, “I know you are black but you can
still under stand [sic.].” He also referenced the nationally-covered protests that erupted in
Ferguson, Missouri, after an unarmed black man was shot and killed by a white police officer,
and discussed killing black people. Plaintiff filed a grievance against Garrett, but Defendant
Clark Schulze did not accept it.
Also under “Racial Discrimination,” Plaintiff states that Schulze denied Plaintiff’s
request to go to work release (which Plaintiff requested due to his diabetes).
Finally, under “Due Process Violation,” Plaintiff condemns what he terms the
unconstitutional grievance forms and procedures. He states that the forms do not provide receipts
at the filing stage, the warden many times does not respond, and that the disciplinary committee
is unfair and fails to comply with administrative guidelines.
Discussion
To facilitate the management of future proceedings, and in accordance with the
objectives of Federal Rules of Civil Procedure 8 and 10, the Court finds it appropriate to break
the claims in Plaintiff’s pro se complaint into numbered counts, as shown below. The parties and
the Court will use these designations in all pleadings and orders, unless otherwise directed by the
Court. The designation of these counts does not constitute an opinion as to their merit.
COUNT 1:

Dr. Caldwell, Unknown Party, and Craig Foster violated Plaintiff’s
constitutional rights when they refused his requests for a “medical
diet.”

COUNT 2:

Unknown Party violated Plaintiff’s constitutional rights when
he/she only provided Plaintiff with a short-sleeved “summer shirt”
during the winter.

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COUNT 3:

Unknown Party violated Plaintiff’s constitutional rights when
he/she denied his request for thermal underwear.

COUNT 4:

Unknown Party and Dr. Caldwell violated Plaintiff’s constitutional
rights when they denied him new boots.

COUNT 5:

Karen Underwood violated Plaintiff’s constitutional rights when
she did not allow Plaintiff to use the law library’s paper or
typewriter, only allowed Plaintiff to use ink pens that he had to
return, and denied him use of the copy machine.

COUNT 6:

Carla Kenable violated Plaintiff’s constitutional rights when she
denied him access to the law library and refused to make copies for
him.

COUNT 7:

Amy Beck violated Plaintiff’s constitutional rights when she told
Plaintiff he could only use the law library typewriter in conjunction
with appeals for clemency, refused him paper, denied him access
to the DVD transcript of one of his court proceedings, and, in
response to a request for copies, when she told him he was “a pain
in [her] ass.”

COUNT 8:

Unknown Party violated Plaintiff’s constitutional rights when
he/she closed the law library, causing Plaintiff’s case to be
dismissed for lack of prosecution.

COUNT 9:

Major Garrett violated Plaintiff’s constitutional rights when he
made racially demeaning comments to Plaintiff.

COUNT 10: Clark Schulze violated Plaintiff’s constitutional rights when he
denied Plaintiff’s grievance against Major Garrett.
COUNT 11: Clark Schulze violated Plaintiff’s constitutional rights when he
denied Plaintiff’s request to for work release (which Plaintiff
requested due to his diabetes).
COUNT 12: The grievance forms and procedures are unconstitutional.
Count 1 does not survive preliminary review. A prison official’s “deliberate indifference
to serious medical needs of prisoners” may constitute cruel and unusual punishment, in violation
of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); U.S. CONST. amend.
VIII. To state an Eighth Amendment claim for deficient medical care, prisoners must establish

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that (1) the medical condition was objectively serious, and (2) the state officials acted with
deliberate indifference to the prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834
(1994); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001). Diabetes is an objectively
serious medical condition. Bowers v. Milwaukee County Jail Medical Staff, 52 F. App’x 295, 298
(7th Cir. 2002) (citing Egebergh v. Nicholson, 272 F.3d 925, 928 (7th Cir. 2001)). Whether
Wright has stated a valid Eighth Amendment claim, therefore, turns on whether he has alleged
facts indicating the Defendants acted with deliberate indifference to his health or safety.
Prison officials act with deliberate indifference when they “realize[] that a substantial risk
of serious harm to a prisoner exists, but then disregard[] that risk.” Perez v. Fenoglio, 792 F.3d
768, 776-77 (7th Cir. 2015) (citing Farmer, 511 U.S. at 837). The Eighth Amendment, however,
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).
Here, Wright does not allege that Dr. Caldwell, the unknown kitchen employee, or
Warden Foster were aware of the existence of a substantial risk of serious harm to Wright. The
complaint merely states that the three employees refused him a “medical diet,” without
explaining what exactly such a diet is. Without any more detail, the Court cannot discern the
presence of a possible constitutional injury, nor is it satisfied that the Defendants would be able
to adequately respond to the allegations. Accordingly, Count 1 is dismissed without prejudice.3

3

So far as Wright is attempting to assert a claim when he laments the hurried atmosphere of the chow line, the
absence of healthy foods in the prison, and the favoritism paid to certain prisoners by prison officials, such a claim is
dismissed without prejudice, due to the fact that he does not name any defendants, nor allege any specific actions
that may be unconstitutional, in association with these instances.

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Counts 2, 3, and 4 do not survive preliminary review. The Seventh Circuit has explained:
Prison officials have a duty, in light of the Eighth Amendment’s prohibition
against cruel and unusual punishment, to “ensure that inmates receive adequate
food, clothing, shelter, and medical care.” Farmer[, 511 U.S. at 832]. To
determine whether an inmate’s Eighth Amendment rights were violated by a
deprivation, we examine the alleged violation both objectively and subjectively.
See id. at 834 [.]
Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001). As in the case of a prisoner’s
medical needs, a conditions of confine claim impels the court to determine (1) whether the
deprivation was “objectively serious,” and (2) whether the prison official acted with “deliberate
indifference to [the] inmate[’s] health or safety.” Id. (internal citations and quotation marks
omitted).
Not all prison conditions trigger Eighth Amendment scrutiny—only deprivations of basic
human needs like food, medical care, sanitation, and physical safety. Rhodes v. Chapman, 452
U.S. 337, 346 (1981). As to the objective component of the claim, the condition described must
result in unquestioned and serious deprivations of basic human needs or deprive the inmate of
the minimal civilized measure of life’s necessities. Id. at 347. Accord Jamison-Bey v. Thieret,
867 F.2d 1046, 1048 (7th Cir. 1989).
A detailed recitation of the facts giving rise to a complaint is not required; however,
Wright states only bare legal conclusions that he was unconstitutionally deprived “proper
clothing.” See Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (“abstract recitations of the
elements of a cause of action or conclusory legal statements” are not adequate to state a claim).
He alleges he was only given a paper-thin, short-sleeve shirt during the winter, and that he was
refused his requests for thermal underwear and new boots, but he does not provide enough
information for the Court to infer, for example, that he was subjected to extreme temperatures for
an inordinate length of time with only inadequate clothing to protect him. See, e.g., Mays v.
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Springborn, 575 F.3d 643, 648-49 (7th Cir. 2009) (prisoner who had hurt ears, numb hands,
feelings of frostbite, and caught colds because he was never issued adequate winter clothing
showed only that he was subject to the “usual discomforts of winter,” not the objectively serious
harm required to state an Eighth Amendment claim). While he claims that he requires new boots
because he is diabetic, he does not connect his allegation with any serious physical harm or
substantial threat to his health or safety. Therefore, Counts 2-4 are dismissed without prejudice.
Additionally, Counts 5, 6, 7, and 8 do not survive preliminary review. Restrictions on an
individual’s access to a law library do not, standing alone, state a constitutional claim. Marshall
v. Knight, 445 F.3d 965, 968 (7th Cir. 2006) (“[T]he mere denial of access to a prison law library
or to other legal materials is not a violation of a prisoner’s rights; his right is to access the
courts.”). An inmate has no constitutional claim that he has been denied access to the courts
unless he can demonstrate that a non-frivolous legal claim has been frustrated or impeded. Lew v.
Casey, 518 U.S. 343, 352-53 (1996). Counts 5-7 make no such allegations and are, therefore,
dismissed without prejudice. While Count 8 states that an appeal in a prior case was dismissed
due to the temporary closure of the law library at one point, he does not specify why the library
was closed, who closed it, or why its closure impeded his access to the courts. Therefore, Count
8 is also dismissed without prejudice.
Count 9 is similarly dismissed. Ordinarily, isolated incidents of verbal harassment do not
rise to the level of a constitutional violation. “[H]arassment, while regrettable, is not what comes
to mind when one thinks of ‘cruel and unusual’ punishment.” Dobbey v. Ill. Dep’t of
Corrections, 574 F.3d 443, 446 (7th Cir. 2009). See also DeWalt v. Carter, 224 F.3d 607, 612
(7th Cir. 2000) (“Standing alone, simple verbal harassment does not constitute cruel and unusual
punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection

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of the laws.”). While a prisoner’s claim that he is being harassed by a prison official may be
actionable when done maliciously, Hudson v. Palmer, 468 U.S. 517, 528-30 (1984), Wright does
not allege Garrett went beyond simple or occasional verbal harassment. Therefore, Count 9 is
dismissed without prejudice.
Count 10 does not survive preliminary review. Although a counselor, grievance officer,
or supervisor who receives a complaint may be liable if they are “personally responsible for the
deprivation of a constitutional right,” Sanville, 266 F.3d at 740 (quoting Chavez v. Ill. State
Police, 251 F.3d 612, 651 (7th Cir. 2001)), 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). Because Wright does not allege that Schulze took part in any
unconstitutional conduct that was the subject of the grievance, Count 10 is dismissed without
prejudice.
For similar reasons, Count 12 does not survive preliminary review. Prison grievance
procedures are not constitutionally mandated. Therefore, grievance proceedings do not implicate
due process concerns per se. As such, Count 12 is dismissed without prejudice.
Count 11 does not survive preliminary review. In the absence of a state rule creating a
specific entitlement, prisoners have no liberty interest in placement. See Montgomery v.
Anderson, 262 F.3d 641, 644 (7th Cir. 2001); DeTomaso v. McGinnis, 970 F.2d 211, 212 (7th
Cir. 1992). Illinois law leaves assignment to work release, like any other transfer, to the
discretion of prison officials. See 20 ILL. ADM. CODE § 455.30. These rules merely establish

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eligibility for such placement, and eligibility by itself does not confer an entitlement. DeTomaso,
970 F.2d at 213. Accordingly, Count 11 is denied without prejudice.
Pending Motion
Wright filed a motion for recruitment of counsel (Doc. 3). That motion is
DENIED as MOOT.
Disposition
All counts and Defendants are DISMISSED without prejudice. Plaintiff is ADVISED
that this dismissal shall count as one of his three allotted “strikes” under the provisions of 28
U.S.C. § 1915(g).
If Plaintiff wishes to appeal this dismissal, his notice of appeal must be filed with this
Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). A motion for leave
to appeal in forma pauperis should set forth the issues Plaintiff plans to present on appeal. See
FED. R. APP. P. 24(a)(1)(C). If Plaintiff does choose to appeal, he will be liable for the $505.00
appellate filing fee irrespective of the outcome of the appeal. See FED. R. APP. 3(e); 28 U.S.C. §
1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181
F.3d 857, 858-59 (7th Cir. 1999); Lucien, 133 F.3d at 467. Moreover, if the appeal is found to be
nonmeritorious, Plaintiff may also incur another “strike.” A proper and timely motion filed
pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline. FED. R.
APP. P. 4(a)(4). A Rule 59(e) motion must be filed no more than twenty-eight (28) days after the
entry of the judgment, and this 28-day deadline cannot be extended.

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The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
IT IS SO ORDERED.
DATED: January 6, 2016

s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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