Walker v. Lashbrook et al

Filing 14

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 8/12/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRUCE WALKER, #M-40804,

)
)
Plaintiff,
)
)
vs.
)
)
JACQUELINE LASHBROOK,
)
SUZANN BAILEY,
)
DIRECTOR OF IDOC,
)
MARK HARTMAN,
)
MARCUS HARDY, and
)
COMMISSARY OWNER (SWANSON’S), )
)
Defendants.
)

Case No. 16-cv-00758-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff

Bruce

Walker,

an

inmate

who

is

currently

incarcerated

at

Pinckneyville Correctional Center (“Pinckneyville”), brings this pro se action for alleged
violations of his constitutional rights under 42 U.S.C. § 1983 (Doc. 1). Plaintiff claims that the
Illinois Department of Corrections’ (“IDOC”) soy-based diet for prisoners violates his rights
under the Eighth and Fourteenth Amendments. He also claims that all of the named Defendants
acted in a conspiracy to establish and maintain a policy of serving a soy diet with the end goal of
pocketing large profits. In connection with these claims, Plaintiff sues Jacqueline Lashbrook
(Pinckneyville warden), Suzann Bailey (food service administrator), unnamed IDOC director,
Mark Hartman (counselor/advocate), Marcus Hardy (deputy director of IDOC) and
Pinckneyville’s commissary owner (hereinafter “Swanson’s”) for monetary damages and
injunctive relief.

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This case is now before the Court for a 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 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).
The Complaint
Plaintiff brings a number of claims in his Complaint, all related to the provision of a soy
diet (Doc. 1, pp. 5-6). According to the Complaint, the Defendants adopted a policy to administer
a primarily soy-based diet as a way to pocket large profits, despite knowing that it caused serious
medical repercussions for inmates. (Id. at 6-7). As a result of the diet, Plaintiff claims he has
developed severe constipation, fatigue, severe stomach pains, loss of circulation, and extremely
bad gas (Id. at 6-7). Cellmates have attacked him on multiple occasions for the bad gas (Id. at 7).
He claims that, despite him and other inmates having lodged countless grievances with the
IDOC, the Defendants have failed to take any action (Id. at 5-7).
Plaintiff also alleges that all of the aforementioned actions were taken by the Defendants
in furtherance of a conspiracy to save money by serving soy instead of animal products, to drive
up business at the commissary and to pocket the profits from the savings and the commissary
sales (Id. at 5-6). Specifically, he notes that the IDOC officials participated by implementing the
soy diet, that the medical staff participated by refusing care for soy-related ailments, that the
counselors participated by interfering with grievances and that the commissary owners
participated by telling inmates to buy more food from the commissary (Id.). Plaintiff also alleges

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that the commissary prices on popular items were often raised higher than they should have been
under prison rules or policies (Id.).
In response to verbal complaints, Hartman and Lashbrook have told him to stop
complaining (Id. at 6). A commissary owner told him to buy more food from the commissary
rather than eating at chow (Id. at 7). He has not received responses to written complaints directed
at the IDOC Director, Bailey, Hardy, or Swanson’s (Id.).
Discussion
Based on the allegations, the Court finds it convenient to divide the pro se Complaint into
the following enumerated claims. 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:

Conspiracy claim against Defendants for the soy diet; and,

Count 3:

Fourteenth Amendment claim against Defendants for failing to
respond to grievances regarding the soy diet.

Count 1 shall receive further review against those defendants who are identified below in
connection with that claim. All remaining claims, including Counts 2 and 3, shall be dismissed
for failure to state a claim upon which relief may be granted.
Count 1
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,

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452 U.S. 337, 346 (1981); see also James v. Milwaukee Cnty., 956 F.2d 696, 699 (7th Cir. 1992).
Prison officials also 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 lifethreatening to be serious; rather, it can be a condition that would result in further significant
injury or unnecessary and wanton infliction of pain if not treated. Gayton v. McCoy, 593 F.3d
610, 620 (7th Cir. 2010). 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).
At this early stage, the Complaint suggests that Plaintiff suffered serious side effects from
the overconsumption of soy in his diet and that the Defendants knew of the risks of the diet.
Plaintiff alleges that the soy diet has caused him severe stomach pain and gas, a loss of
circulation, fatigue, and extreme constipation. Plaintiff claims that Defendants Lashbrook,
Bailey, unnamed IDOC director, Hartman, and Hardy participated in designing and
implementing the soy diet despite known ill-effects. He wrote to Defendants unnamed IDOC
director, Bailey, Hardy and Swanson’s about his symptoms, and verbally informed Lashbrook
and Hartman of such repercussions, but received no substantive responses. The Complaint
suggests that these individuals may have responded to Plaintiff’s complaints regarding the issues
associated with a soy diet with deliberate indifference. Therefore, Count 1 shall proceed against
Defendants Lashbrook, Bailey, Hartman, and Hardy.
However, the Complaint may not proceed against unnamed IDOC director because a
State entity or individual acting in their official capacity on behalf of the State is immune from
suit. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); see also Wynn v. Southward,

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251 F.3d 588, 592 (7th Cir. 2001) (Eleventh Amendment bars suits against states in federal court
for money damages). Even if the unnamed IDOC director acted in his or her supervisory
capacity, there is no supervisory liability under section 1983, so the claim against he or she
would still fail. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Thus, Count 1 will
be dismissed with prejudice against the unnamed IDOC director.
Additionally, the Complaint states no claim against Defendant Swanson’s. A corporate
entity will incur liability in a civil rights action only where it established a policy that directly
caused the constitutional violation. See Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917,
927 (7th Cir. 2004). In the Complaint, Plaintiff does not allege that Swanson’s was responsible
for the policy of providing Plaintiff with a soy diet. Therefore, Count 1 shall be dismissed against
Swanson’s without prejudice.
In summary, Plaintiff may proceed with Count 1 against Defendants Lashbrook, Bailey,
Hartman, and Hardy; however, Count 1 shall be dismissed with prejudice against the unnamed
IDOC director and Swanson’s.
Count 2
Count 2 alleges a conspiracy amongst all the Defendants to offer a soy-based diet in order
to save the institution money and to generate revenue through commissary purchases. Plaintiff
alleges that Defendants Lashbrook, Bailey, unnamed IDOC Director, Hartman, and Hardy all
participated in adopting and implementing the soy diet.
Count 2 does not survive preliminary review because the Complaint offers insufficient
allegations in support of this claim. Section 1983 creates a cause of action based on personal
liability and predicated upon fault; thus, “to be liable under [Section] 1983, an individual must
have caused or participated in a constitutional deprivation.” Pepper v. Village of Oak Park,

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430 F.3d 805, 810 (7th Cir. 2005) (citations omitted). “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 (citation
omitted). The Plaintiff’s mention of a conspiracy is insufficient, even at the early pleadings
stage, to satisfy basic pleading requirements under Federal Rule of Civil Procedure 8 or Bell
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 factual allegations do not support a
conspiracy claim against Defendants, based on their issuance of a soy diet. Plaintiff provides no
basic outline as to when the soy diet plan was created or implemented, who attended the
meetings leading to its inception, or what the precise terms were prior to implementation.
Further, the Complaint also fails to articulate a viable conspiracy claim against
Defendants for allegedly implementing a soy diet in order to generate revenue in the prison’s
commissary. Conspiracy is not an independent basis of liability in Section 1983 actions. See
Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008); Cefalu v. Vill. of Elk Grove, 211 F.3d 416,
423 (7th Cir. 2000). “There is no constitutional violation in conspiring to cover up an action
which does not itself violate the Constitution.” Hill v. Shobe, 93 F.3d 418, 422 (7th Cir. 1996).
The Complaint alleges that the purpose of this particular “conspiracy” is to force inmates
to purchase food at the commissary. In other words, this scheme is allegedly aimed at taking
prisoners’ money. However, Plaintiff did not allege that his money was taken without due
process of law. Even if the Complaint so alleged, there is no cognizable civil rights claim if the

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state provides an adequate legal remedy. Hudson v. Palmer, 468 U.S. 517, 530-36 (1984)
(availability of damages remedy in state claims court is an adequate, post-deprivation remedy).
The Seventh Circuit has found that Illinois provides an adequate post-deprivation remedy in an
action for damages in the Illinois Court of Claims. Murdock v. Washington, 193 F.3d 510, 513
(7th Cir. 1999); Stewart v. McGinnis, 5 F.3d 1031, 1036 (7th Cir. 1993); 705 ILL. COMP. STAT.
505/8 (1995). Because this state remedy is available, Plaintiff cannot maintain a constitutional
claim for any deprivation of his money as a result of the Pinckneyville soy diet policy. Where
there is no underlying constitutional claim for this “deprivation,” there is likewise no viable civil
rights claim for a “conspiracy” to deprive inmates of their funds. Thus, Count 2 shall be
dismissed without prejudice for failure to state a claim upon which relief may be granted.
Count 3
The Complaint refers to the Fourteenth Amendment but does not explain why. To the
extent that Count 3 arises from 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.”
Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011). Put differently, the fact that Defendants
may have ignored Plaintiff’s grievances does not give rise to a due process claim against them.
Moreover, Plaintiff is not harmed by the dismissal of this Count, because he is still able to
proceed against the Defendants via Count 1. Accordingly, Count 3 is dismissed with prejudice as
to all Defendants.

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Pending Motions
Plaintiff’s Motion for Service of Process at Government Expense (Doc. 4) is hereby
GRANTED in part as to Defendants Lashbrook, Bailey, Hartman, and Hardy, and DENIED
as to Defendants unnamed IDOC director and Commissary Owner (Swanson’s).
Disposition
IT IS ORDERED that COUNT 1 is DISMISSED with prejudice against Defendants
unnamed IDOC director and Swanson’s for failure to state a claim upon which relief may be
granted. COUNT 2 is DISMISSED in its entirety without prejudice for failure to state a claim
upon which relief may be granted. COUNT 3 is also DISMISSED in its entirety with prejudice
against all Defendants for failure to state a claim upon which relief may be granted.
IT IS ORDERED that COUNT 1 shall receive further review against Defendants
LASHBROOK, BAILEY, HARTMAN and HARDY. With respect to COUNT 1, the Clerk of
Court shall prepare for DEFENDANTS LASHBROOK, BAILEY, HARTMAN AND
HARDY: (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

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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 Stephen C. Williams for further pre-trial proceedings, including a decision on
Plaintiff’s Motion for Recruitment of Counsel (Doc. 4). 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, regardless of the fact
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

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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 12, 2016
s/ MICHAEL J. REAGAN
U.S. District Judge

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