Torres v. Shah et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 3/22/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PABLO TORRES,
Plaintiff,
vs.
VIPEN SHAH,
SUZANN BAILEY,
DIRECTOR I.D.O.C., and
JACQUELINE LASHBROOK,
Defendants.

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CIVIL NO. 16-cv-00218-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff Pablo Torres is currently incarcerated at Pinckneyville Correctional Center
(“Pinckneyville”), located in Pinckneyville, Illinois. Torres brings this pro se action for
deprivations of his Eighth Amendment and Fourteenth Amendment rights pursuant to 42 U.S.C.
§ 1983 against several prison officials.
This matter is now before the Court for a preliminary review of Torres’ 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.” Upon careful review of the
complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority
under § 1915A.

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Background
According to the complaint, Plaintiff has been served a soy-based diet while incarcerated
at Pinckneyville, which over time has led to health problems. More specifically, the complaint
alleges that the Director (the “Director”) of the Illinois Department of Corrections (“IDOC”),
Food Service Administrator Suzann Bailey, Warden Lashbrook, and Dr. Vipen Shah have
conspired to endanger Plaintiff’s health. Plaintiff has experienced the side effects of consuming
too much soy, such as constipation, stomach pains, gas, and a torn anus. The defendant officials,
however, have not altered the soy diet. Dr. Shah merely instructed Plaintiff to drink more water,
and refused to test Plaintiff’s thyroid function. When Plaintiff requested of Bailey that she direct
Shah to prescribe a soy-free diet for Plaintiff, she told him to “just buy more commissary. Don’t
eat the soy.” Further, Plaintiff has filed administrative grievances to no avail, and his letters to
his counselor and Lashbrook have gone unanswered. According to the complaint, in 2009 female
inmates successfully sued IDOC over their soy diet, and are no longer served soy-based meals.
Based on the allegations in the complaint, the Court finds it convenient to divide the pro
se action into the following counts. 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 as to their merit.
COUNT 1:

Shah, Director, Bailey, and Lashbrook violated Plaintiff’s Eighth
Amendment rights by serving him soy meals.

COUNT 2:

Shah was deliberately indifferent to Plaintiff’s Eighth Amendment
rights.

COUNT 3:

Shah, Director, Bailey, and Lashbrook conspired against Plaintiff
by serving soy food at the prison.

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Discussion
Count 1 may proceed against the Director, Bailey, and Lashbrook. The Constitution
mandates that prison officials provide inmates with “nutritionally adequate food that is prepared
and served under conditions which do not present an immediate danger to the health and wellbeing of the inmates who consume it.” French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985).
Construing Plaintiff’s complaint broadly, he alleges that Pinckneyville had a policy of serving
soy-based food to prisoners, that this food has caused a number of side effects, and that highlevel officials were aware of these side effects from a previous suit yet continued to serve soy
food anyway. These allegations are sufficient to state arguable claims concerning the service of
nutritionally inadequate or dangerous food against the Director, Bailey, and Lashbrook. This is
true especially in light of the fact that this claim concerns systematic conditions at Pinckneyville
and the prison-related defendants appear to be senior level staff within IDOC. See Antonelli v.
Sheahan, 81 F.3d 1422, 1428-29 (7th Cir. 1996) (personal involvement can be assumed at early
stage for high-level officials if the conditions alleged are “potentially systematic”). Accordingly,
Count 1 may proceed as to the Director, Bailey, and Lashbrook.
Count 1 must be dismissed, however, as to Dr. Shah. Plaintiff has not alleged that Shah
had any involvement in general food services at Pinckneyville, and he is not the type of prison
official whose involvement in food service can be presumed at the outset of a suit. Accordingly,
Count 1 must be dismissed without prejudice as to Dr. Shah.
Plaintiff may pursue his claim against Dr. Shah, however, as to Count 2. Plaintiff claims
that Dr. Shah refused his request for a thyroid hormone level check and a soy-free diet, despite
his numerous health problems. To state a medical claim under the Eighth Amendment, a plaintiff
must show that his condition “was objectively serious,” and that officials acted with the requisite

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intent towards that condition (deliberate indifference). Sherrod v. Lingle, 223 F.3d 605, 610 (7th
Cir. 2000). For screening purposes, Plaintiff’s claim passes the objective hurdle—he alleges that
he suffered constipation, stomach pains, gas, a torn anus, and other symptoms linked to the food
at the prison, and those symptoms can indicate an arguably serious condition at screening. See
Gutierrez v. Peters, 111 F.3d 1364, 1372 n.7 & 1373 (7th Cir. 1997). Plaintiff’s claim also
passes the subjective hurdle—allegations of a failure to treat can constitute indifference,
depending on the circumstances. Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011); McGowan
v. Hulick, 612 F.3d 636, 640-41 (7th Cir. 2010). As such, Count 2 may proceed through
screening.
While it is not clear from the complaint, Plaintiff also seems to bring standalone
conspiracy allegations concerning the soy-based diet at the prison (Count 3). To the extent
Count 3 is an effort to draw Dr. Shah into Count 1, this is problematic under Federal Rule of
Civil Procedure 8, which requires litigants to provide a minimum level of “factual content” to
state a claim “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Without
more developed allegations, Plaintiff has not made out a viable conspiracy claim, and Count 3
must be dismissed.
Over and above his Eighth Amendment claims, Plaintiff also invokes the Fourteenth
Amendment in his complaint. However, Plaintiff fails to articulate any distinct Fourteenth
Amendment issue, and the Court cannot discern one from the narrative of his complaint. Any
Fourteenth Amendment claim would appear to be redundant, as it is necessarily based on the
same facts underlying the Eighth Amendment claims that were already recognized above. See,
e.g., Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005) (dismissing equal protection and Eighth
Amendment claims based on same circumstances as religious claim because religious claim

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“gains nothing by attracting additional constitutional labels”); Williams v. Snyder, 150 F. App’x
549, 552–53 (7th Cir. 2005) (dismissing equal protection, access to courts, due process, and
Eighth Amendment claims as duplicative of retaliation and religion claims). As such, the
Fourteenth Amendment claims should be considered dismissed without prejudice.
Motion for Service of Process at Government Expense
Plaintiff’s motion for service of process at Government expense (Doc. 4) is GRANTED.
Service shall be ordered for the Defendants as ordered below.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, COUNT 1 shall PROCEED
against the DIRECTOR, BAILEY, and LASHBROOK. COUNT 1 is DISMISSED without
prejudice as to SHAH.
IT IS FURTHER ORDERED that COUNT 2 may PROCEED against SHAH.
IT IS FURTHER ORDERED that COUNT 3 is DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendants
SHAH, DIRECTOR, BAILEY, and LASHBROOK: (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 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, 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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IT IS FURTHER ORDERED that, 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.
IT IS FURTHER ORDERED that 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 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 a United States
Magistrate Judge for further pre-trial proceedings, including a decision on Plaintiff’s motion for
appointment of counsel (Doc. 3).
Further, this entire matter is REFERRED to a Magistrate Judge for disposition, as
contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to
such a referral.
IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff, and the
judgment includes the payment of costs under Section 1915, Plaintiff will be required to pay the

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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 § 1915 for leave to
commence this action without being required to prepay fees and costs, 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 22, 2016
s/ MICHAEL J. REAGAN
Michael J. Reagan
Chief Judge
United States District Court

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