Harris v. Shah et al

Filing 41

ORDER GRANTING 27 Motion for Summary Judgment and 30 Motion for Summary Judgment. Defendants Vipin Shah, Wexford Health Sources, Inc., and Jacqueline Lashbrook are DISMISSED without prejudice. Plaintiff is ORDERED to provide an address to the Cl erk of Court for service of process on Cantina Food Services on or before January 17, 2017. Plaintiff is WARNED that the failure to do so by the deadline shall result in dismissal of Cantina Food Services. Signed by Judge Nancy J. Rosenstengel on 12/30/16. (klh2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRANDON D. HARRIS,
Plaintiff,
vs.
VIPIN SHAH,
WEXFORD HEALTH SOURCES, INC.,
CANTINA FOOD SERVICES, and
JACQUELINE LASHBROOK,
Defendants.

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Case No. 16-CV-144-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Currently pending before the Court are the motions for summary judgment on
the issue of exhaustion filed by Defendants Vipin Shah and Wexford Health Sources, Inc.
(Doc. 27) and Jacqueline Lashbrook (Doc. 30). The Court has determined there are no
material facts in dispute and therefore the motion can be resolved without a hearing
pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). For the reasons set forth below,
the motions are granted.
BACKGROUND
Plaintiff Brandon D. Harris filed suit pursuant to 42 U.S.C. § 1983 on February 8,
2016, alleging that his constitutional rights were violated by the soy diet that was served
at the Pinckneyville Correctional Center, where he is currently housed (Doc. 1). Plaintiff
claimed that because of the soy diet he has suffered from gastrointestinal difficulties
(gas, stomach pains, diarrhea) for the previous two-and-a-half years (Doc. 1). Following
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a threshold review of the complaint pursuant to 28 U.S.C. § 1915A, Plaintiff was
permitted to proceed on two counts:
Count 1:

Defendants Vipin Shah, Wexford Health Sources, Inc.,
Cantina Food Services, and Jacqueline Lashbrook have
endangered Plaintiff’s health by serving him a soy-based
diet, in violation of the Eighth Amendment; and

Count 2:

Defendant Vipin Shah was deliberately indifferent to
Plaintiff’s serious medical needs, in violation of the Eighth
Amendment.

(Doc. 7).
Defendants Vipin Shah and Wexford filed their motion for summary judgment on
the issue of exhaustion on August 4, 2016 (Doc. 27), and Defendant Lashbrook filed hers
one day later (Doc. 30). Plaintiff’s deadline for responding to the two motions was
September 9, 2016 (see Docs. 27, 30). He received two notices informing him of the
consequences of failing to respond to the motions (Docs. 29, 32). Despite the notices,
Plaintiff did not file a response to either motion.
LEGAL STANDARDS
A. Summary Judgment
The standard applied to summary judgment motions under Federal Rule of Civil
Procedure 56 is well-settled and has been succinctly stated as follows:
Summary judgment is appropriate where the admissible evidence shows
that there is no genuine dispute as to any material fact and that the moving
party is entitled to judgment as a matter of law. A “material fact“ is one
identified by the substantive law as affecting the outcome of the suit. A
“genuine issue” exists with respect to any such material fact . . . when “the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” On the other hand, where the factual record taken as a
whole could not lead a rational trier of fact to find for the non-moving
party, there is nothing for a jury to do. In determining whether a genuine
issue of material fact exists, we view the record in the light most favorable
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to the nonmoving party.
Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 681 (7th Cir. 2014) (citations omitted).
B. Exhaustion
The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust their
administrative remedies through the prison’s grievance process before filing a civil
rights suit pertaining to prison conditions. 42 U.S.C. § 1997e(a); Pyles v. Nwaobasi,
829 F.3d 860, 864 (7th Cir. 2016). The purpose of the exhaustion requirement is to “alert
prison officials to perceived problems and to enable them to take corrective action
without first incurring the hassle and expense of litigation.” Cannon v. Washington,
418 F.3d 714, 719 (7th Cir. 2005). See also Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011)
(quoting Jones v. Bock, 549 U.S. 199, 219 (2007)). “The exhaustion requirement is
interpreted strictly; thus, a ‘prisoner must comply with the specific procedures and
deadlines established by the prison’s policy.’” Pyles, 829 F.3d at 864 (quoting King v.
McCarty, 781 F.3d 889, 893 (7th Cir. 2015)).
DISCUSSION
In the Southern District of Illinois, a party’s failure to respond to a summary
judgment motion “may, in the Court’s discretion, be considered an admission of the
merits of the motion.” SDIL–LR 7.1(c). See also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir.
2003) (“We have consistently held that a failure to respond by the nonmovant as
mandated by the local rules results in an admission.”) The Court exercises its discretion
under Local Rule 7.1(c) and considers Plaintiff’s failure to respond to Defendants’
motions for summary judgment an admission on the merits of the motions. That is,
Plaintiff admits he failed to exhaust his administrative remedies as to Defendants Shah,
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Wexford, and Lashbrook.
Based on the grievance records from Pinckneyville and the ARB and the
counseling records from Pinckneyville, the undisputed evidence shows there is no
record that Plaintiff submitted a grievance related to the soy-diet (or related health
effects) or otherwise complained to his counselor about the soy-diet (Docs. 28-1, 28-2).
While Plaintiff discussed his grievance filing activities in his Complaint, those
allegations are not competent evidence to withstand a motion for summary judgment.
Brown v. Advocate South Suburban Hosp., 700 F.3d 1101, 1105 (7th Cir. 2012) (“Mere
allegations in a complaint, however, are not evidence and do not establish a triable issue
of fact”) (quotation marks and citation omitted). Consequently, there is no evidence that
Plaintiff exhausted his administrative remedies as required by the PLRA.
Finally, with respect to Cantina Food Services, the only remaining Defendant, the
Complaint did not list an address for service of process. The Clerk of Court has been
unable to determine a correct address for this entity. Consequently, Plaintiff must
promptly provide an address to the Clerk of Court for service of process, or Cantina
Food Services will be dismissed from this action.
CONCLUSION
For the reasons set forth above, the motions for summary judgment on the issue
of exhaustion filed by Defendants Vipin Shah and Wexford Health Sources, Inc.
(Doc. 27) and Jacqueline Lashbrook (Doc. 30) are GRANTED. Defendants Vipin Shah,
Wexford Health Sources, Inc., and Jacqueline Lashbrook are DISMISSED without
prejudice.

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The only claim that remains in this suit is Count 1 against Cantina Food Services.
Plaintiff is ORDERED to provide an address to the Clerk of Court for service of process
on Cantina Food Services on or before January 17, 2017. Plaintiff is WARNED that the
failure to do so by the deadline shall result in dismissal of Cantina Food Services.
IT IS SO ORDERED.
DATED: December 30, 2016

NANCY J. ROSENSTENGEL
United States District Judge

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