Creekmore v. Shah et al
Filing
10
ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 4/5/2016. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TRAVIS CREEKMORE, # K-55373,
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Plaintiff,
vs.
DOCTOR VIPEN SHAH,
SUZANN BAILEY,
JACQUELINE LASHBROOK,
and IDOC DIRECTOR,
Defendants.
Case No. 16-cv-00246-MJR
MEMORANDUM AND ORDER
REAGAN, Chief Judge:
Plaintiff
Travis
Creekmore,
an
inmate
who
is
currently
incarcerated
at
Pinckneyville Correctional Center (“Pinckneyville”), brings this pro se civil rights action
pursuant to 42 U.S.C. § 1983 for violations of his Eighth and Fourteenth Amendment rights at
Pinckneyville. (Doc. 1). Since 2014, Plaintiff has been served a soy diet at the prison and
blames his current health problems on the diet. Plaintiff now sues the Illinois Department of
Corrections’ Director (IDOC Director), Jacqueline Lashbrook (prison warden), Vipen Shah
(prison doctor), and Suzann Bailey (IDOC food services administrator) for monetary damages.
(Doc. 1, pp. 5-7).
This matter is 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
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
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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.
The Complaint
For the past two years, Plaintiff has been served a soy-based diet at Pinckneyville.
(Doc. 1, p. 5). During the same time period, he has suffered numerous painful and protracted
bouts of constipation, each lasting up to six days. He has also suffered from severe headaches,
gas, and fatigue. (Id.).
In March 2014, Plaintiff filed two written requests for medical treatment at the prison, but
he received no response. In early 2015, he filed a number of “soy-related” grievances and sick
call requests, which were also ignored until mid-September. When Plaintiff finally met with
Doctor Shah on or around September 15, 2015, the doctor refused to address his concerns.
Plaintiff complained of severe headaches, gas, fatigue, and constipation. (Id. at 6). After hearing
his complaints, the doctor instructed Plaintiff to “drink more water.” (Id. at 5). When Plaintiff
requested a test of his thyroid function, Doctor Shah said, “We don’t do that. The company I
work for won’t allow it and I wouldn’t anyway. It’s not soy. Just buy more commissary.” (Id.).
Plaintiff’s family contacted the IDOC Director to complain about the soy diet.
The director denied any soy problem and told Plaintiff’s family to “deal with it.” (Id.). As a last
resort, Plaintiff also sent a complaint about the soy diet directly to Suzann Bailey, the food
services administrator, on December 11, 2015.
When she failed to respond to Plaintiff’s
grievance, he commenced this action. (Id.).
Plaintiff now sues the IDOC Director, Warden Lashbrook, Food Administrator Bailey,
and Doctor Shah for conspiring to violate his rights under the Eighth and Fourteenth
Amendments. He seeks monetary damages. (Id. at 7).
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Merits Review Under 28 U.S.C. § 1915A
Based on the allegations, the Court finds it convenient to divide the pro se complaint into
the following enumerated 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 regarding their merit.
Count 1:
Eighth Amendment claim against Defendants for endangering
Plaintiff’s health by serving him a soy diet.
Count 2:
Fourteenth Amendment claim against Defendants for ignoring
Plaintiff’s grievances regarding the soy diet.
Count 3:
Conspiracy claim against Defendants for issuing Plaintiff a soy
diet in an effort to violate his rights.
Count 1 shall receive further review against the defendants. However, Counts 2 and 3
shall be dismissed for failure to state a claim upon which relief may be granted.
Claims Subject to Further Review
Count 1 - Soy Diet
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). Prison conditions that deprive inmates of basic human needs, such as inadequate
nutrition, health, or safety, may constitute cruel and unusual punishment. Rhodes v. Chapman,
452 U.S. 337, 346 (1981); see also James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992).
Prison officials violate the Eighth Amendment’s proscription against cruel and unusual
punishment when their conduct demonstrates “deliberate indifference to serious medical needs of
prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976).
A medical condition need not be life-threatening to be serious. A condition is considered
serious, if it would result in further significant injury or unnecessary and wanton infliction of
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pain if not treated. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). Plaintiff describes a
number of untreated, painful conditions in the complaint, including headaches and constipation.
At this early stage, the complaint suggests that Plaintiff may have suffered serious side effects
from the soy diet, satisfying the objective component of this claim for screening purposes.
The deliberate indifference standard is satisfied if the plaintiff shows that 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). Deliberate indifference is not
satisfied where the prison official was negligent or grossly negligent; the official must have acted
with the equivalent of criminal recklessness. Id. at 835-37. In this context, the doctrine of
respondeat superior is not applicable. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.
2001) (quoting Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). To recover
damages against a supervisory official, a § 1983 plaintiff cannot rely on a theory of supervisory
liability. Perez v. Fenoglio, 792 F.3d 768, 777-78 (7th Cir. 2015) (citing Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009)). Instead, he must allege that the defendant, through his or her own
conduct, violated the Constitution. Id. Alternatively, a high-level prison official may be liable in
his individual capacity for conditions that are systemic in nature. See Antonelli v. Sheahan,
81 F.3d 1422, 1428 (7th Cir. 1996).
The complaint suggests that the IDOC Director, Warden Lashbrook, Doctor Shah, and
Food Administrator Bailey played a role in the decision to adopt a soy diet at the prison.
In addition, they may have responded to Plaintiff’s direct or written complaints about the soy diet
and its side effects with deliberate indifference. Plaintiff complained about the diet and its side
effects directly to Doctor Shah. He filed a grievance with Food Administrator Bailey, and he had
his family contact the IDOC Director to complain. However, Plaintiff’s complaints allegedly fell
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on deaf ears. In the Eighth Amendment context, an inmate’s “correspondence to a prison
administrator may . . . establish a basis for personal liability under § 1983 where that
correspondence provides sufficient knowledge of a constitutional deprivation.” Perez, 792 F.3d
at 777-78 (citing Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996)). Given Plaintiff’s efforts
to put the defendants on notice of his adverse reaction to soy, the Court cannot dismiss this claim
against the defendants at this time. Therefore, Count 1 shall receive further review against the
IDOC Director, Warden Lashbrook, Doctor Shah, and Food Administrator Bailey.
Claims Subject to Dismissal
Count 2 – Fourteenth Amendment
The Fourteenth Amendment claim (Count 2) against these defendants shall be dismissed.
This claim appears to arise from the fact that the defendants ignored or delayed responses to
Plaintiff’s grievances about the soy diet.
However, prison grievance procedures are not
constitutionally mandated and thus do not implicate the Due Process Clause per se. 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).
In other words, 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 shall be dismissed
with prejudice against the defendants for failure to state a claim upon which relief may be
granted.
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Count 3 – Conspiracy
The complaint also alludes to the defendants’ conspiracy (Count 3) to destroy any paper
trail addressing soy-related complaints. (Doc. 1, pp. 5-6). Plaintiff alleges that the defendants
“must have destroyed all soy-related documents” which “goes along with any conspiracy
claims.” (Id.). This is the only reference to a conspiracy claim in the complaint.
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)). Plaintiff’s mere mention of a conspiracy is
speculative at best and certainly insufficient to satisfy basic pleading requirements under Federal
Rule of Civil Procedure 8 or 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”).
Accordingly, Count 3 shall be dismissed without prejudice for failure to state a claim upon
which relief may be granted.
Pending Motions
Plaintiff filed a Motion for Recruitment of Counsel (Doc. 3), which shall be
REFERRED to United States Magistrate Judge Stephen C. Williams for a decision.
Plaintiff also filed a Motion for Service of Process at Government Expense (Doc. 4),
which is hereby GRANTED. Service will be ordered on all of the defendants according to the
instructions in the below Disposition.
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Disposition
IT IS HEREBY ORDERED that COUNT 2 is DISMISSED with prejudice for failure
to state a claim upon which relief may be granted, and COUNT 3 is DISMISSED without
prejudice for the same reason.
IT IS ORDERED that as to COUNT 1, the Clerk of Court shall prepare for Defendants
ILLINOIS DEPARTMENT OF CORRECTIONS DIRECTOR, VIPEN SHAH, SUZANN
BAILEY, and JACQUELINE 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 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
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
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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
pending 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, 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 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
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
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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: April 5, 2016
s/ MICHAEL J. REAGAN
Chief Judge,
United States District Court
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