Thigpen v. Shah et al

Filing 10

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 8/4/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SIDNEY THIGPEN, # M-25710,

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Plaintiff,
vs.
VIPEN SHAH,
SUZANN BAILEY,
DIRECTOR IDOC,
JACQUELINE LASHBROOK,
ROBERT SAMOLINSKI,
and MARK HARTMAN,
Defendants.

Case No. 16-cv-00753-NJR

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff

Sidney

Thigpen,

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 in order to challenge the decision of prison officials in the Illinois
Department of Corrections (“IDOC”) to serve inmates a soy-based diet (Doc. 1, pp. 4-5).
Plaintiff has consumed this diet since December 16, 2011. He claims that the overconsumption
of soy has caused him to suffer from a number of persistent and painful health problems,
including extreme gas, severe constipation, poor circulation, severe headaches, stomach pain,
bloody stools, a torn anus, and depression (id. at 4).
Plaintiff has seen Doctor Shah several times to discuss these medical conditions (id. at 5).
Rather than treating him, however, Doctor Shah instructed Plaintiff to “just drink more water”
(id.). Doctor Shah responded in the same manner when Plaintiff requested a thyroid hormone
level check. He said, “No. What for? Just drink more water” (id.). When Plaintiff complained

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about prolonged bouts of constipation, the doctor recommended that he simply “push a little
harder” (id.).
Other IDOC officials ignored Plaintiff’s verbal and written complaints on the subject.
Plaintiff submitted written complaints about the prison diet, his related health problems, and the
denial of medical care to Warden Lashbrook, Warden Spiller, 1 and Suzann Bailey, all “to no
avail” (id. at 5). He sent several appeals to the IDOC Director and Bailey, but they ignored his
appeals. Plaintiff witnessed Counselors Samolinski and Hartman destroy several of his
grievances. When he complained about the diet and denial of health care directly to Warden
Lashbrook in 2015, the warden said, “You mistake me for somebody who gives a fuck” (id.).
Warden Lashbrook then threatened Plaintiff with segregation if he continued to complain.
Plaintiff now sues the IDOC Director, Warden Lashbrook, Food Service Administrator
Bailey, and Doctor Shah for conspiring to violate his rights under the Eighth and Fourteenth
Amendments by adopting a policy of serving a soy-based diet to inmates in the IDOC as a costsaving measure and denying all medical care for soy-related health problems. He claims that
Counselors Samolinski and Hartman mishandled his grievances regarding these issues. In
connection with these claims, Plaintiff seeks monetary damages (id. at 6).
Merits Review Under 28 U.S.C. § 1915A
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

1

Although Plaintiff mentions Warden Spiller in his statement of claim, he does not name this individual
as a defendant in the case caption or in the list of defendants. When parties are not listed in the
complaint’s caption, this Court will not treat them as defendants, and any claims against them are
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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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 survives preliminary review under this
standard.
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:

Eighth Amendment deliberate indifference claim against
Defendants for denying Plaintiff adequate medical treatment
for symptoms he attributes to the overconsumption of soy.

Count 3:

Fourteenth Amendment claim against Defendants for ignoring
Plaintiff’s grievances regarding the soy diet and denial of
medical care for his related symptoms.

Count 4:

Conspiracy claim against Defendants for depriving Plaintiff of
a nutritionally adequate diet in an effort to save money.

As explained below, Count 1 is subject to further review against the IDOC Director,
Warden Lashbrook, and Food Administrator Bailey, but shall be dismissed with prejudice
against Doctor Shah, Counselor Samolinski, and Counselor Hartman. Count 2 shall proceed
against Doctor Shah and Warden Lashbrook, but shall be dismissed without prejudice against all
other defendants. Counts 3 and 4 shall be dismissed with prejudice against all of the defendants
for failure to state a claim upon which relief may be granted.

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Discussion
Count 1
Prison officials are required to provide inmates with “nutritionally adequate food that is
prepared and served under conditions which do not present an immediate danger to the health
and well-being of the inmates who consume it.” French v. Owens, 777 F.2d 1250, 1255 (7th Cir.
1985). Plaintiff alleges that the defendants adopted a soy-based diet as a cost-saving measure,
despite the known negative health consequences associated with the diet. According to the
complaint, Plaintiff suffered adverse health consequences soon after he began to consume the
diet in 2011. He names the IDOC Director, Warden Lashbrook, Food Administrator Bailey, and
Doctor Shah in connection with the decision to offer a soy diet to inmates in IDOC custody.
The allegations are sufficient to state a claim concerning the service of nutritionally
inadequate or harmful foods against the IDOC Director, Warden Lashbrook, and Food
Administrator Bailey. These defendants are senior level staff within the IDOC and/or
Pinckneyville. It stands to reason that they possessed decision-making authority regarding the
prison diet.
However, the claim shall be dismissed against all other defendants. In the complaint,
Plaintiff does not allege that the prison diet resulted from a policy directive of Doctor Shah,
Counselor Samolinski, or Counselor Hartman or that these defendants were involved in food
service decisions. Accordingly, Count 1 shall be dismissed with prejudice against Doctor Shah,
Counselor Samolinski, and Counselor Hartman.
Count 2
The complaint states a colorable Eighth Amendment deliberate indifference to medical
needs claim against Doctor Shah and Warden Lashbrook for denying Plaintiff medical care for

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the symptoms he attributes to the overconsumption of soy. Relative to this claim, the Supreme
Court has recognized that “deliberate indifference to serious medical needs of prisoners” may
constitute cruel and unusual punishment under the Eighth Amendment. Estelle v. Gamble,
429 U.S. 97, 104 (1976); Erickson v. Pardus, 551 U.S. 89, 94 (2006) (per curiam). Deliberate
indifference involves a two-part test. The plaintiff must show that: (1) the medical condition was
objectively serious; and (2) the state officials acted with deliberate indifference to his medical
needs, which is a subjective standard. Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000).
A medical need is considered “serious” where it has either “been diagnosed by a
physician as mandating treatment” or where the need is “so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.” Gutierrez v. Peters, 111 F.3d 1364, 1373
(7th Cir. 1997). The Seventh Circuit considers the following to be indications of a serious
medical need: (1) where failure to treat the condition could “result in further significant injury or
the unnecessary and wanton infliction of pain;” (2) the “[e]xistence of an injury that a reasonable
doctor or patient would find important and worthy of comment or treatment;” (3) the “presence
of a medical condition that significantly affects an individual’s daily activities;” or
(4) “the existence of chronic and substantial pain.” Gutierrez, 111 F.3d at 1373.
The symptoms described by Plaintiff include severe pain associated with gastrointestinal
distress and headaches. Severe and persistent pain can rise to the level of a serious medical need.
See Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002). This includes complaints of
continuous abdominal pain. See, e.g., Chambers v. Mitchell, 499 F. App’x 587 (7th Cir. 2013)
(neither party disputed that persistent abdominal pain associated with possible constipation
qualified as a serious medical need). This may also include severe pain associated with
headaches. See Look v. Heckler, 775 F.2d 192, 193 (7th Cir. 1985) (severe, untreated headaches

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may qualify as an objectively serious medical need). But see Henderson v. Sheahan, 196 F.3d
839, 846 (7th Cir. 1999) (breathing problems, chest pains, dizziness, sinus problems, and
headaches resulting from exposure to second-hand smoke were “not sufficiently serious to be
constitutionally actionable”); Reed v. McBride, 178 F.3d 849, 853 (7th Cir. 1999)
(quoting Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996) (“a prison medical staff’s refusal to
‘dispense bromides for the sniffles or minor aches and pains or a tiny scratch or a mild headache
or minor fatigue . . . does not violate the Constitution’”). At this early stage, the Court finds that
the symptoms described in the complaint satisfy the objective component of Plaintiff’s Eighth
Amendment claim in Count 2.
The complaint also suggests that Doctor Shah and Warden Lashbrook exhibited
deliberate indifference to Plaintiff’s need for medical treatment, satisfying the subjective
component of this claim. Deliberate indifference is shown “when a defendant realizes that a
substantial risk of serious harm to the prisoner exists, but the defendant disregards that risk.”
See Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010). The Seventh Circuit has made it clear
that “[n]either medical malpractice nor mere disagreement with a doctor’s medical judgment is
enough to prove deliberate indifference in violation of the Eighth Amendment.” Id. at 440
(citing Estelle, 429 U.S. at 106; Estate of Cole v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996)).
At the same time, Plaintiff is not required to show that he was “literally ignored.” Id.
(citing Sherrod, 223 F.3d 605, 611 (7th Cir. 2000)). A doctor’s choice of the “easier and less
efficacious treatment” can support a deliberate indifference claim under the Eighth Amendment.
Id. (citations omitted).
In the complaint, Plaintiff alleges that Doctor Shah essentially ignored his medical needs;
Warden Lashbrook likewise allegedly disregarded Plaintiff’s direct request for medical care.

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The allegations support

a claim against both of these defendants at this stage.

Accordingly, Count 2 shall proceed against Doctor Shah and Warden Lashbrook. This claim
shall be dismissed without prejudice against all other defendants, however, because the
complaint offers no factual allegations or copies of grievances detailing the exact nature of
Plaintiff’s request for and denial of medical care by these defendants. See Perez v. Fenoglio, 792
F.3d 768, 782 (7th Cir. 2015) (prisoner could proceed with deliberate indifference needs claim
against non-medical prison officials who knew of plaintiff’s serious medical need and inadequate
medical care through “coherent and highly detailed grievances and other correspondence” but
failed to intervene).
Count 3
The complaint does not articulate a Fourteenth Amendment claim against the defendants.
Plaintiff complains that prison officials ignored or mishandled the grievances he filed to
complain about the soy diet and the adverse health consequences that resulted. They also ignored
his appeals. Prison grievance procedures are not constitutionally mandated and give rise to no
independent claim under the Fourteenth Amendment Due Process Clause. 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);
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). Accordingly,
Count 3 shall be dismissed with prejudice against all of the defendants for failure to state a claim
upon which relief may be granted.

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Count 4
The complaint also supports no conspiracy claim against the defendants. Plaintiff vaguely
alludes to a “conspiracy” but offers no factual allegations to support this claim. Claims of
conspiracy require a factual foundation to survive preliminary review. Woodruff v. Mason,
542 F.3d 545, 551 (7th Cir. 2008) (quoting Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.
2006)). “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 fact that the defendants may have played a
role in carrying out the decision to serve soy at the prison does not establish the existence of a
conspiracy. No allegations suggest that a decision to this effect was made to harm Plaintiff, or
any other prisoner. Count 4 shall therefore be dismissed with prejudice against all of the
defendants for failure to state a claim upon which relief may be granted.
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
States Magistrate Judge Donald G. Wilkerson for a decision.
Plaintiff’s motion for service of process at government expense (Doc. 4) is hereby
GRANTED in part, with respect to the IDOC DIRECTOR, JACQUELINE LASHBROOK,

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SUZANN BAILEY, and VIPEN SHAH, and DENIED in part, with respect to
ROBERT SAMOLINSKI and MARK HARTMAN.
Disposition
IT IS HEREBY ORDERED that COUNT 1 is DISMISSED with prejudice against
Defendants VIPEN SHAH, ROBERT SAMOLINSKI, and MARK HARTMAN; COUNT 2
is DISMISSED without prejudice against Defendants IDOC DIRECTOR, SUZANN
BAILEY, ROBERT SAMOLINSKI, and MARK HARTMAN; and COUNTS 3 and 4 are
DISMISSED with prejudice against all of the defendants, all for failure to state a claim upon
which relief may be granted.
IT IS FURTHER ORDERED that COUNT 1 is subject to further review against
Defendants IDOC DIRECTOR, JACQUELINE LASHBROOK, and SUZANN BAILEY,
and COUNT 2 is subject to further review against Defendants JACQUELINE LASHBROOK
and VIPEN SHAH. With regard to COUNTS 1 and 2, the Clerk of Court shall prepare for
IDOC DIRECTOR, JACQUELINE LASHBROOK, SUZANN BAILEY, and VIPEN
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 (Doc. 1), 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

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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
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
pending 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 § 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

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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
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: August 4, 2016

NANCY J. ROSENSTENGEL
United States District Judge

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