Falkner v. Shah et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 1/21/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TYREESE FALKNER, # M-50918,
Plaintiff,
vs.
VIPEN SHAH,
SUZANN BAILEY,
WEXFORD MEDICAL SOURCES,
and UNKNOWN PARTY,
Defendants.

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Case No. 15-cv-01399-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff

Tyreese

Falkner,

an

inmate

who

is

currently

incarcerated

at

Pinckneyville Correctional Center (“Pinckneyville”), brings this civil rights action pursuant to
42 U.S.C. § 1983. (Doc. 1). According to the complaint, Plaintiff suffers from a diagnosed fish
allergy, but he has been given a diet containing fish at Pinckneyville. (Id. at 5-6). On several
occasions, he has suffered from serious allergic reactions. Plaintiff claims that his requests for a
fish-free diet have fallen on deaf ears.
Plaintiff now sues Wexford Medical Sources (medical provider), Vipen Shah (doctor),
Suzann Bailey (food service administrator), and an unknown defendant (food supervisor) for
conspiring to violate his rights under the Eighth and Fourteenth Amendments by intentionally
serving him a diet containing fish. (Id.). Plaintiff seeks monetary damages. (Id. at 8).
Merits Review Under 28 U.S.C. § 1915A
This matter is now before the Court for preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. Under Section 1915A, the Court is required to promptly screen prisoner

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complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court must 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
During his incarceration at Stateville Correctional Center (“Stateville”), Plaintiff was
diagnosed with a fish allergy. (Doc. 1 at 5). He was issued a medical permit for this condition.
(Id. at 9). Plaintiff has no complaints about receiving fish in his diet at Stateville.
The complaint instead focuses on the diet Plaintiff has received at Pinckneyville.
Since his transfer to this prison, 1 Plaintiff claims that he has routinely received food containing
fish. (Id. at 5). Not surprisingly, he has suffered from serious allergic reactions on more than one
occasion, resulting in headaches, facial swelling, hives, and loss of consciousness.
Plaintiff has repeatedly reminded Pinckneyville officials about his allergy and requested a
special diet. When he met with a nurse at Pinckneyville, Plaintiff learned that the doctor refused
his request for a special diet because of cost concerns. Plaintiff complained directly to
Pinckneyville’s food service administrator, Suzann Bailey, to no avail. He also filed numerous
grievances with Warden Lashbrook. Plaintiff’s complaints have “gone in one ear and out the
other.” (Id.). To date, he has not been placed on a “special diet.” (Id.).
Plaintiff now sues Pinckneyville’s medical provider (Wexford Health Sources), doctor
(Vipen Shah), food service administrator (Suzann Bailey), and the unknown food service
supervisor (“Jane/John Doe”) for conspiring to violate his rights under the Eighth and Fourteenth
Amendments by intentionally serving him a diet that contains fish. He seeks only monetary
damages. (Id. at 8).
1

Plaintiff does not disclose the date of his transfer from Stateville to Pinckneyville.

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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
deems it appropriate to organize the claims in Plaintiff’s pro se complaint into three separate
counts, as set forth below. 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 claims does not constitute an opinion as to their merit.
Count 1:

Eighth Amendment claim against Defendants for endangering
Plaintiff’s health by serving him a diet containing fish at
Pinckneyville.

Count 2:

Fourteenth Amendment claim against Defendants for ignoring
Plaintiff’s grievances about the fish in his diet.

Count 3:

Conspiracy claim against Defendants for intentionally serving
Plaintiff a diet containing fish in an effort to violate his rights.

As explained below, Count 1 shall receive further review against Defendants Bailey and
Shah, but no one else. Counts 2 and 3 shall be dismissed against all of the defendants for failure
to state a claim upon which relief may be granted.
Claim Subject to Further Review
Count 1 – Deliberate Indifference to Medical Needs
The complaint articulates a colorable Eighth Amendment deliberate indifference to
medical needs claim (Count 1) against Defendants Bailey and Shah. 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 Eighth Amendment “safeguards the prisoner against a lack of medical care that ‘may result
in pain and suffering which no one suggests would serve any penological purpose.’” See Perez v.

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Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015) (citing Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 828 (7th Cir. 2009) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). To state
an Eighth Amendment claim in this context, a plaintiff must allege an objectively serious
medical condition and an official’s deliberate indifference to that condition. Arnett v. Webster,
658 F.3d 742, 751 (7th Cir. 2011).
Plaintiff’s fish allergy is sufficiently serious to support an Eighth Amendment claim at
this stage. A serious medical condition is one that “has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would perceive the need for
a doctor’s attention.” Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005). The medical condition
need not be life-threatening to be serious; rather, it can be a condition that would result in further
significant injury or unnecessary and wanton infliction of pain if not treated. Gayton v. McCoy,
593 F.3d 610, 620 (7th Cir. 2010). Plaintiff’s fish allergy has been diagnosed by a physician.
The allegations in the complaint reveal the dangers posed by the allergy. Plaintiff has, on more
than one occasion, suffered symptoms of anaphylaxis following his consumption of food
containing fish. These symptoms include headaches, swelling, hives, and loss of consciousness.
The allegations satisfy the objective component of his Eighth Amendment claim.
The Court’s analysis does not end there, however. To satisfy the subjective component of
this claim, the complaint must also suggest that each defendant responded to Plaintiff’s serious
medical need with deliberate indifference. This standard is satisfied if 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). The complaint suggests that two defendants responded
with deliberate indifference to Plaintiff’s allergy: Defendants Bailey and Shah.

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Food Service Administrator Suzann Bailey
Suzann Bailey may have responded to Plaintiff’s fish allergy with deliberate indifference.
Bailey, who is responsible for deciding “what and how much is served,” took no action to
eliminate fish from Plaintiff’s diet after learning of his condition. (Doc. 1 at 2, 5).
Plaintiff complained directly to this defendant. (Id. at 5). Based on these allegations, Count 1
shall receive further review against Defendant Bailey.
Doctor Vipen Shah
The allegations suggest that Doctor Shah may have also responded to Plaintiff’s
diagnosed allergy with deliberate indifference. (Id. at 5-6). When Plaintiff asked a nurse to order
him a special diet, she allegedly refused to do so because “the doctor” specifically declined to
order a fish-free diet based on cost concerns. (Id.). Doctor Shah is the only doctor named in this
action. Construing the allegations liberally, the Court finds that Doctor Shah was likely “the
doctor” who refused Plaintiff’s request for a special diet, despite a known allergy to fish. Count 1
shall also proceed against this defendant.
Wexford Medical Sources & Food Supervisor
This claim cannot proceed against Wexford or Jane/John Doe (unknown food
supervisor). The complaint generally asserts that all of the defendants knew about Plaintiff’s
allergy and conspired to violate his rights by “intentionally forcing him to eat and be served
fish.” (Id. at 5). This allegation is conclusory and, standing alone, cannot support an Eighth
Amendment deliberate indifference to medical needs claim against either of these defendants.
See 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.”).

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Section 1983 creates a cause of action based on personal liability and predicated upon
fault; thus, “to be liable under § 1983, an individual defendant must have caused or participated
in a constitutional deprivation.” Pepper v. Village of Oak Park, 430 F.3d 809, 810 (7th Cir.
2005) (citations omitted). The doctrine of respondeat superior does not apply to actions filed
under § 1983. See, e.g., Kinslow v. Pullara, 538 F.3d 687, 692 (7th Cir. 2008). Plaintiff’s claim
against both Wexford and Jane/John Doe rests entirely on this doctrine.
Wexford is a private corporation that contracts with the Illinois Department of
Corrections to provide medical services to prisoners in Illinois. A private corporation that
contracts to provide essential government services cannot be liable under § 1983, unless the
constitutional violation “was caused by an unconstitutional policy or custom of the corporation
itself.” Shields v. Illinois Dept. of Corr., 746 F.3d 789 (7th Cir. 2014). No allegations suggest
that Wexford was responsible for a policy or custom that resulted in Plaintiff’s exposure to fish
in his diet. Count 1 shall therefore be dismissed without prejudice against Wexford.
The same is true for Jane/John Doe. This defendant is identified as the food supervisor,
who was responsible for making food “policy and enforce[ing] it.” (Id. at 2). While this may be
true, the allegations do not suggest that this defendant knew about Plaintiff’s fish allergy and still
created or enforced a policy of serving him fish. Without more, the Court cannot conclude that
this defendant had any personal involvement in an Eighth Amendment violation. Count 1 shall
be dismissed without prejudice against Jane/John Doe as well.
Claims Subject to Dismissal
Count 2 – Due Process
The complaint refers to the Fourteenth Amendment (Count 2), but Plaintiff does not
explain why. To the extent that Count 2 arises from the defendants’ failure to respond to his

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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.” 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. Count 2 fails and shall be
dismissed with prejudice against all of the defendants.
Count 3 – Conspiracy
The conspiracy claim (Count 3) also fails. “To establish the existence of a conspiracy, a
plaintiff must demonstrate that the conspirators have an agreement to inflict injury or harm upon
him.” Sow v. Fortville Police Dept., 636 F.3d 293, 304-05 (7th Cir. 2011). “The 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 conspiracy’s objectives.” Id. at 305 (quoting
Hernandez v. Joliet Police Dept., 197 F.3d 256, 263 (7th Cir. 1999)). The complaint alleges that
the defendants conspired to violate Plaintiff’s constitutional rights “by intentionally forcing him
to eat and be served fish even though they knew that he was allergic to fish.” (Doc. 1 at 5).
The mere mention of a conspiracy is insufficient to satisfy basic pleading requirements
under Rule 8 of the Federal Rules of Civil Procedure and Bell v. Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007) (requiring a plaintiff to plead “enough facts to state a claim to relief
that is plausible on its face”). The complaint simply does not suggest that Wexford, Doctor Shah,

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Food Administrator Bailey, and Jane/John Doe entered into an agreement to serve Plaintiff food
that they knew would harm him. Conclusory assertions of a conspiracy, such as those set forth in
the complaint, cannot sustain this claim. See Brooks, 578 F.3d at 581 (Courts “should not accept
as adequate . . . conclusory legal statements.”). Accordingly, Count 3 shall be dismissed without
prejudice for failure to state a claim upon which relief may be granted.
Non-Parties
The claims in this action are considered dismissed without prejudice against all other
individuals who are not identified as defendants in the case caption but are named in the
statement of claim, including Warden Lashbrook, the nurse, and Cantina Food Services.
(Id. at 5). When parties are not listed in the caption, this Court will not treat them as defendants.
See FED. R. CIV. P. 10(a) (noting that the title of the complaint “must name all the parties”);
Myles v. United States, 416 F.3d 551, 551-52 (7th Cir. 2005) (to be properly considered a party,
a defendant must be “specif[ied] in the caption”).
Request for Interim Relief
Plaintiff has not asked this Court to consider issuing a temporary restraining order
(“TRO”) or preliminary injunction, in the form of an order requiring the prison to eliminate fish
from his diet. If such an order becomes necessary, Plaintiff may file a separate motion for a TRO
and/or preliminary injunction pursuant to Rule 65(a)-(b) of the Federal Rules of Civil Procedure.
He is free to do so at any time during the pending action.
Pending Motions
Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 2) shall be addressed in a
separate Order of this Court.
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be REFERRED to United

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States Magistrate Judge Donald G. Wilkerson for a decision.
Finally, Plaintiff’s motion for service of process at government expense (Doc. 4) is
hereby GRANTED in part, with respect to SUZANN BAILEY and VIPEN SHAH, and
DENIED in part, with respect to all other defendants.
Disposition
IT IS HEREBY ORDERED that COUNT 2 is DISMISSED with prejudice and
COUNT 3 is DISMISSED without prejudice for failure to state a claim upon which relief may
be granted.
IT IS ALSO ORDERED that Defendants WEXFORD MEDICAL SOURCES and
UNKNOWN PARTY (John/Jane Doe Food Supervisor) are DISMISSED without prejudice
from this action because the complaint fails to state a claim against either of these defendants
upon which relief may be granted.
IT IS FURTHER ORDERED that as to COUNT 1, the Clerk of Court shall prepare for
Defendants BAILEY and SHAH: (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.
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

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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 Donald G. Wilkerson 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 Wilkerson 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 Section 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
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

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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: January 21, 2016

NANCY J. ROSENSTENGEL
United States District Judge

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