Jordan v. Bailey et al

Filing 9

IT IS ORDERED that Plaintiff is GRANTED leave to file a First Amended Complaint in this case, if he wishes to pursue Counts 1 or 2. The First Amended Complaint is due on or before December 12, 2016. Should Plaintiff fail to file his First Amended Complaint within the allotted time, dismissal of this action will become with prejudice. (Amended Pleadings due by 12/12/2016). Signed by Chief Judge Michael J. Reagan on 11/14/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DENZEL JORDAN,
# M-55351,
Plaintiff,
vs.
SUZANN BAILEY,
JOHN BALDWIN,
JACQUELINE LASHBROOK,
BETSY SPILLER,
and LARUE LOVE,
Defendants.

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Case No. 16-cv-01126-MJR

MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff

Denzel

Jordan,

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. He challenges the decision of several officials in the Illinois
Department of Corrections (“IDOC”) to serve inmates a soy-based diet while denying them
medical care for the adverse side effects they suffer (Doc. 1, p. 5). In connection with these
claims, Plaintiff names John Baldwin (IDOC director), Jacqueline Lashbrook (Pinckneyville
warden), Betsy Spiller (assistant warden of operations), LaRue Love (assistant warden of
programs), and Suzann Bailey (food service administrator) for conspiring to violate his rights
under the Eighth and Fourteenth Amendments (id. at 5). Plaintiff seeks monetary relief against
them (id. at 6).

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Merits Review Under 28 U.S.C. § 1915A
This case is now before the Court for a 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).
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief
can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to
relief must

cross

“the line between

possibility and

plausibility.”

Id.

at

557.

Conversely, a complaint is plausible on its face “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept
factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual
allegations may be so sketchy or implausible that they fail to provide sufficient notice of a
plaintiff’s claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts
“should not accept as adequate abstract recitations of the elements of a cause of action or
conclusory legal statements.” Id. At the same time, however, the factual allegations of a pro se
complaint are to be liberally construed.

See Rodriguez v. Plymouth Ambulance Serv.,

577 F.3d 816, 821 (7th Cir. 2009). The complaint does not survive preliminary review under this
standard and shall therefore be dismissed.

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Complaint
The allegations in the complaint are set forth in a single paragraph (Doc. 1, p. 5).
There, Plaintiff alleges that Defendants Baldwin, Lashbrook, Spiller, Love, and Bailey conspired
with Doctor Vipen Shah to violate Plaintiff’s rights by serving him a soy-based diet and “almost
never” serving him fresh fruit (id.). Plaintiff has consumed the diet since November 19, 2015,
and he claims that Doctor Shah has refused to provide inmates with “adequate medical care” for
their “soy-related/complaints” since that time (id.). Instead, the defendants have “poket[ed] (sic)
the millions of dollars that they save[d]” by serving this diet (id.).
Discussion
Based on the allegations, the Court finds it convenient to divide the pro se complaint into
the following enumerated counts:
Count 1:

Eighth Amendment claim against Defendants for endangering
Plaintiff’s health by serving him a soy diet and denying him
adequate access to fresh fruit.

Count 2:

Eighth Amendment deliberate indifference claim against
Doctor Shah for denying Plaintiff adequate medical care for
his soy-related health complaints.

Count 3:

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

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
The allegations in the complaint state no claim against the defendants for endangering
Plaintiff’s health by serving him a soy-based diet that includes little fresh fruit. The Seventh
Circuit has held that prison officials must provide inmates with “nutritionally adequate food that
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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). Their failure to do so may give rise to an Eighth Amendment claim.
The problem with Plaintiff’s claim is that he includes no allegations suggesting that the
prison’s diet caused him to suffer any adverse side effects. Assuming that it did, Plaintiff also
failed to disclose any efforts on his part to put the defendants on notice of them. The complaint
supports no Eighth Amendment claim against the defendants under the circumstances and shall
be dismissed without prejudice.
Count 2
The complaint also supports no claim against Doctor Shah for refusing to treat Plaintiff
for symptoms he developed from the over-consumption of soy or the under-consumption of fresh
fruit. Doctor Shah is not named as a defendant in this action. He is neither listed in the case
caption of the complaint nor in the list of defendants. Plaintiff merely alludes to him in the
statement of claim. 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”). Accordingly, this claim is
considered dismissed without prejudice against Doctor Shah, who is not a named defendant.
Count 3
The complaint also supports no conspiracy claim against the defendants. This claim
consists of nothing more than conclusory allegations that the defendants pocketed money which
should have been spent on the inmates’ diet (Doc. 1, p. 5). Claims of conspiracy require a

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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)).
Conclusory allegations of a conspiracy do not meet this standard. This claim shall be dismissed
with prejudice against all of the defendants for failure to state a claim upon which relief may be
granted.
Pending Motions
1.

Motion for Recruitment of Counsel (Doc. 2)
Plaintiff’s motion for recruitment of counsel (Doc. 2) is DENIED.

There is no

constitutional or statutory right to counsel in federal civil cases. Romanelli v. Suliene, 615 F.3d
847, 851 (7th Cir. 2010). When a pro se litigant submits a request for counsel, the Court must
first consider whether the indigent plaintiff has made reasonable attempts to secure counsel on
his own. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (citing Pruitt v. Mote, 503 F.3d
647, 654 (7th Cir. 2007)). If so, the Court must examine “whether the difficulty of the case—
factually and legally—exceeds the particular plaintiff’s capacity as a layperson to coherently
present it.” Navejar, 718 F.3d at 696 (quoting Pruitt, 503 F.3d at 655). Plaintiff indicates that he
sent out letters to attorneys that are attached to his motion; no such letters are attached.
Therefore, the Court cannot conclude that his attempts to secure counsel on his own were

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unsuccessful. It is not even clear when he sent the letters. Further, his claims are straightforward
and simply require Plaintiff to describe the health problems (if any) that he suffered as a result of
the prison’s diet, and the efforts he made to put each defendant on notice of these health
problems. The motion is denied without prejudice. However, the Court remains open to future
requests for counsel, if Plaintiff is unable to secure counsel on his own and adequately explains
why he requires assistance in litigating this matter.
2.

Motion for Service of Process (Doc. 3)
Plaintiff’s motion for service of process at government expense (Doc. 3) is hereby

DENIED as being unnecessary. Plaintiff was granted leave to proceed in forma pauperis. If any
claims in an amended complaint survive preliminary review, the Court will order service of the
lawsuit on each defendant. Plaintiff does not need to file another motion.
Disposition
IT IS HEREBY ORDERED that COUNT 1 is DISMISSED without prejudice and
COUNT 3 is DISMISSED with prejudice against Defendants JOHN BALDWIN,
JACQUELINE LASHBROOK, BETSY SPILLER, LARUE LOVE, and SUZANN
BAILEY, both for failure to state a claim upon which relief may be granted. All claims,
including COUNT 2, are DISMISSED without prejudice against Doctor Vipen Shah, who is not
named as a defendant in this action.
IT IS ORDERED that Plaintiff is GRANTED leave to file a First Amended Complaint
in this case, if he wishes to pursue Counts 1 or 2. The First Amended Complaint is due on or
before December 12, 2016. Should Plaintiff fail to file his First Amended Complaint within the
allotted time, dismissal of this action will become with prejudice. FED. R. CIV. P. 41(b). See

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generally Ladien v. Astrachan, 128 F.3d 1051 (7th Cir. 1997); Johnson v. Kamminga, 34 F.3d
466 (7th Cir. 1994). Further, a “strike” will be assessed. See 28 U.S.C. § 1915(g).
Should Plaintiff decide to file a First Amended Complaint, it is strongly recommended
that he use the forms designed for use in this District for such actions. He should be careful to
label the pleading, “First Amended Complaint,” and he must list this case number on the first
page (Case No. 16-1126-MJR). Plaintiff must present each claim in a separate count (if he
includes more than one claim), and each count shall specify, by name, each defendant alleged to
be liable under the count for a violation of Plaintiff’s federal constitutional rights, as well as the
actions alleged to have been taken by that defendant. Plaintiff should attempt to include the facts
of his case in chronological order, inserting each defendant’s name where necessary to identify
the actors. Plaintiff should refrain from filing unnecessary exhibits. He should include only
related claims in his First Amended Complaint. Claims found to be unrelated will be severed
into new cases, new case numbers will be assigned, and additional filing fees will be assessed.
To enable Plaintiff to comply with this order, the Clerk is DIRECTED to mail Plaintiff a blank
civil rights complaint form.
Plaintiff is ADVISED that this dismissal shall not count as one of his allotted “strikes”
under the provisions of 28 U.S.C. § 1915(g).
An amended complaint supersedes and replaces the original Complaint, rendering the
original Complaint void. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n. 1
(7th Cir. 2004). The Court will not accept piecemeal amendments to the original Complaint.
Thus, the First Amended Complaint must stand on its own, without reference to any previous
pleading, and Plaintiff must file any exhibits he wishes the Court to consider along with the First

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Amended Complaint. Finally, the First Amended Complaint is subject to review pursuant to
28 U.S.C. § 1915A.
Plaintiff is further ADVISED that his obligation to pay the filing fee for this action was
incurred at the time the action was filed, thus the filing fee of $350.00 remains due and payable,
regardless of whether Plaintiff elects to file a First Amended Complaint.

See 28 U.S.C.

§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
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: November 14, 2016
s/ MICHAEL J. REAGAN
Chief District Judge
United States District Court

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