Adams v. Shah et al
Filing
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ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 4/18/2016. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID A. ADAMS, # M-45508,
Plaintiff,
vs.
VIPEN SHAH,
SUZANN BAILEY,
CANTINA FOOD SERVICES,
WEXFORD MEDICAL SERVICES,
and IDOC DIRECTOR,
Defendants.
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Case No. 16-cv-00324-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff David Adams is currently incarcerated at Pinckneyville Correctional Center
(“Pinckneyville”). He filed this action pursuant to 42 U.S.C. § 1983 against the Director of the
Illinois Department of Corrections (“IDOC”), Wexford Medical Sources (“Wexford”),
Cantina Food Services (“Cantina”), Suzann Bailey (food services administrator), and Vipen Shah
(Pinckneyville doctor) for conspiring to violate his Eighth and Fourteenth Amendment rights by
serving him only two soy-based meals each day at Pinckneyville. (Doc. 1, pp. 5-7).
Plaintiff seeks monetary relief. (Id. at 8).
The case is now before the Court for preliminary review of the complaint pursuant to
28 U.S.C. § 1915A. Under § 1915A, the Court is required to promptly screen prisoner
complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to
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).
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The Complaint
Plaintiff raises two sets of claims in his complaint. The first arises from the soy diet that
he is served at Pinckneyville. The second pertains to the prison’s policy of serving only two
meals each day. The factual allegations offered in support of these claims are summarized below.
Soy Diet
According to the complaint, the IDOC Director, Wexford, Cantina, Doctor Shah, and
Food Administrator Bailey conspired to violate Plaintiff’s rights under the Eighth and Fourteenth
Amendments by adopting a soy diet at the prison.1 (Doc. 1, p. 5). The defendants are aware that
soy diets cause serious medical problems because they were each named in a 2009 lawsuit
addressing this issue; the lawsuit was filed by female prisoners in Illinois, and the prisoners
prevailed. Even so, the defendants insist on serving a soy diet at the prison. (Id.).
Since arriving at Pinckneyville in 2014, Plaintiff has consumed this diet and suffered
negative health consequences as a result. At first, he suffered from severe stomach pains,
extreme gas, and diarrhea. When he filed grievances to complain about the diet and his
symptoms, a prison nurse told Plaintiff that Wexford instructed IDOC medical personnel to
avoid any “paper trails concerning soy-related medical problems.” (Id.). Consistent with this
directive, the prison’s grievance counselors, Mark Hartman and Robert Samolinksi, intentionally
destroyed grievances addressing Plaintiff’s complaints. When Plaintiff received no response to
his grievances, he stopped filing them because he “lost hope.” (Id.).
1
Plaintiff also names Warden Lashbrook, Robert Samolinski, and Mark Hartman in connection with his
soy diet claim, however, these individuals are not named as defendants in the case caption or list of
defendants in the complaint. When parties are not listed in the caption, this Court will not treat them as
defendants, and any claims against them should be considered dismissed without prejudice. 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) (holding that to be properly considered a party, a defendant must be
“specif]ied] in the caption”).
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Meanwhile, his symptoms multiplied. Plaintiff also began suffering from severe
headaches and constipation. He suffered four bouts of constipation that lasted eight days and
resulted in painful bowel movements and a “torn . . . anus.” (Id. at 6). When Plaintiff met with
Doctor Shah to discuss his symptoms, the doctor simply told him to “drink more water” or buy
his food from the prison commissary. (Id.). Plaintiff’s request for a thyroid test was also denied.
Another inmate encouraged Plaintiff to write letters directly to the IDOC Director,
Warden Lashbrook, and Wexford. He did so but received no response. Plaintiff also had his
family contact them directly. These direct pleas for help were ignored.
Plaintiff alleges that the decision to adopt a soy diet at the prison enabled the defendants
to “make[ ] and split[ ] hundreds of millions in dollars.” (Id.). He now sues the IDOC Director,
Wexford, Cantina, Doctor Shah, and Food Administrator Bailey for conspiring to violate his
rights under the Eighth and Fourteenth Amendments.
“Two-Meal-Per-Day” Policy
The complaint also alleges that the IDOC Director, Cantina, Food Administrator Bailey,
and Warden Lashbrook2 conspired to violate Plaintiff’s rights under the Eighth and Fourteenth
Amendments by adopting a policy of serving only two meals each day at the prison.
Pinckneyville serves no breakfast. (Id. at 6). Inmates are instead served brunch at 10:00 a.m. and
dinner at 4:00 p.m. (Id. at 7). This means Plaintiff is required to go without food for up to
eighteen hours at a time. As a result, he suffers from severe hunger pains, headaches, weight
loss, and lethargy. (Id. at 7-8).
Plaintiff maintains that the two meals are nutritionally inadequate. (Id. at 6-7). He has
two options. He can either wait up to eighteen hours for his next meal or supplement his diet
2
Although Plaintiff once again names Warden Lashbrook in connection with this claim, the warden is not
listed as a defendant in the case caption. Accordingly, the Court will not treat the warden as a defendant
herein, and all claims against this individual are deemed dismissed without prejudice. See id.
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with food from the commissary. Purchasing breakfast from the commissary costs $2.00.
Plaintiff points out that the prison would make $4,000.00 per day if each of its 2,000 inmates
purchased breakfast. According to Plaintiff, the policy amounts to nothing more than a profitmaking scheme on the part of the IDOC Director, Cantina, Food Administrator Bailey, and
Warden Lashbrook. The policy also violates Plaintiff’s rights under the Eighth and Fourteenth
Amendments. (Id.).
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 has
organized the claims in Plaintiff’s 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 IDOC Director,
Wexford, Cantina, Doctor Shah, and Food Administrator
Bailey for endangering Plaintiff’s health by serving a soy diet
at the prison.
Count 2:
Conspiracy claim against Defendants IDOC Director,
Wexford, Cantina, Doctor Shah, and Food Administrator
Bailey for serving a soy diet at the prison in order to generate
revenue for themselves.
Count 3:
Eighth Amendment claim against Defendants IDOC Director,
Cantina, and Food Administrator Bailey for endangering
Plaintiff’s health by instituting a “two-meal-per-day” policy
that deprives Plaintiff of a nutritionally adequate diet.
Count 4:
Conspiracy claim against Defendants IDOC Director, Cantina,
and Food Administrator Bailey for attempting to generate
revenue for themselves by adopting and instituting the “twomeal-per-day” policy at Pinckneyville.
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Count 5:
Fourteenth Amendment claim against the defendants.
Claims Subject to Further Review
Counts 1 & 3–Eighth Amendment
Several claims survive preliminary review under § 1915A and shall receive further
consideration. Count 1 shall proceed against Defendants IDOC Director, Wexford, Cantina,
Doctor Shah, and Food Administrator Bailey. Count 3 shall proceed against Defendants
IDOC Director, Cantina, and Food Administrator Bailey, and it shall be dismissed with
prejudice against Defendants Wexford and Doctor Shah because these defendants are not
mentioned in connection with this claim.
Claims Subject to Dismissal
Counts 2 & 4–Conspiracy
Counts 2 and 4 shall be dismissed with prejudice because the allegations in the complaint
do not support a conspiracy claim against the defendants. “To establish the existence of a
conspiracy, a plaintiff must demonstrate that the conspirators ha[d] an agreement to inflict injury
or harm upon him.” Sow v. Fortville Police Dep’t, 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 Dep’t, 197 F.3d 256, 263 (7th Cir. 1999)). The mere
mention of a conspiracy is 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”). The
allegations do not suggest that there was an agreement on the part of any particular group of
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defendants to generate income for their personal benefit by serving a soy diet or two meals each
day at the prison. Bald assertions and conclusory allegations to this effect do not support a
colorable conspiracy claim against the defendants. See Ashcroft v. Iqbal, 556 U.S. 662 (2009);
Brooks v. Ross, 578 F.3d 574 (7th Cir. 2009). Counts 2 and 4 shall therefore be dismissed with
prejudice for failure to state a claim upon which relief may be granted.
Count 5–Fourteenth Amendment
The complaint refers to the Fourteenth Amendment (Count 5) but does not explain why.
To the extent that this claim arises from the defendants’ failure to respond to Plaintiff’s
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” upon which relief may be granted. 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. To the extent that Count 5 refers to some other legal basis for relief, Plaintiff has not
included sufficient allegations to support a claim against any particular defendant. Twombly,
550 U.S. at 570. Accordingly, Count 5 shall be dismissed with prejudice for failure to state a
claim upon which relief may be granted.
Pending Motions
Plaintiff filed a motion for service of process (Doc. 3), which is GRANTED. Service
shall be ordered on all of the defendants.
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Plaintiff also filed a motion for recruitment of counsel (Doc. 8), which shall be
REFERRED to United States Magistrate Judge Donald G. Wilkerson for a decision.
Disposition
IT IS HEREBY ORDERED that COUNT 3 is DISMISSED with prejudice against
Defendants VIPEN SHAH and WEXFORD MEDICAL SERVICES, and COUNTS 2, 4, and
5 are DISMISSED with prejudice against all of the defendants for failure to state a claim upon
which relief may be granted.
IT IS FURTHER ORDERED that COUNT 1 will receive further review against all of
the defendants, and COUNT 3 will proceed against Defendants SUZANN BAILEY,
CANTINA FOOD SERVICES, and IDOC DIRECTOR. With respect to COUNTS 1 and 3,
the Clerk of Court shall prepare for DEFENDANTS VIPEN SHAH, WEXFORD MEDICAL
SERVICES,
SUZANN
BAILEY,
CANTINA
FOOD
SERVICES,
and
IDOC
DIRECTOR: (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
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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. 8). 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 § 1915, Plaintiff will be required to pay the full amount of the costs, even though 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,
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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: April 18, 2016
NANCY J. ROSENSTENGEL
United States District Judge
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