Solano v. Bailey et al

Filing 9

IT IS ORDERED that, should he wish to proceed with this case, plaintiff shall file his first amended complaint, stating any facts which may exist to support a medical indifference claim related to the soy diet, within 28 days of the entry of this order (on or before April 17, 2017). (Amended Pleadings due by 4/17/2017). Signed by Judge David R. Herndon on 3/22/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ALLEN SOLANO,
Plaintiff,
vs.

Case No. 17-cv-0192-DRH

SUZANN BAILEY,
JOHN BALDWIN,
MIKE FISHER,
LARUE LOVE, and
VIPIN SHAH,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff

Allen

Solano,

an

inmate

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. Specifically,
plaintiff alleges that defendants conspired to violate his Eighth and Fourteenth
Amendment rights by serving him a soy-based diet. He seeks compensatory and
punitive damages, and fees.
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.

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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

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granted, or asks for money damages from a defendant who by law is immune
from such relief. 28 U.S.C. § 1915A(b). Upon review of the complaint, the Court
will exercise its authority under § 1915A and summarily dismiss this action.
The Complaint
Plaintiff entered the Illinois Department of Corrections (“IDOC”) on April 2,
2015. (Doc. 1, p. 5). He started eating a soy-based diet at that time, to which he
attributes headaches, constipation, gas, depression, and other mental injuries.
(Doc. 1, pp. 5-6). Plaintiff alleges that the named defendants conspired to violate
plaintiff’s rights when they instituted a policy to serve inmates a soy-based diet,
refused to provide adequate medical care for the effects of consuming too much
soy, refused to provide adequate nutrition, refused to serve inmates fresh fruit,
and intentionally misplaced grievances. (Doc. 1, p. 5). Plaintiff alleges that the
defendants profit off the soy-based diet. (Doc. 1, p. 6).
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 deliberate
indifference to plaintiff’s health by serving him a soy diet;
Count 2 – Defendants conspired to serve plaintiff a soy diet in
deliberate indifference to his health in violation of the Eighth
Amendment; and,
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Count 3 – Fourteenth Amendment claim against defendants for
failing to respond to grievances regarding the soy diet.
All three claims shall be dismissed at this time.

As to 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, 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 life-threatening 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).
A number of courts have rejected inmates’ claims that a soy diet puts them
at risk of serious harm. In Harris v. Brown, the court appointed both attorneys
and experts for the plaintiffs, but ultimately concluded after reviewing the expert

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reports and noting the ubiquity of soy in the American diet that “society today
simply does not see soy protein as a risk to the general population, much less a
serious risk.” No. 07-CV-3225, 2014 WL 4948229 at *4 (C.D. Ill. Sept. 30, 2014).
The court granted summary judgment to the defendants, noting that even if it
accepted the plaintiffs’ expert opinions, they did not conclusively establish that
soy protein created a risk, only that “the safety of soy is a topic of current debate
and study.” Id. Other courts have also come to the same conclusion, albeit on a
less developed record.

See Riley-El v. Godinez, No. 13 C 8656, 2015 WL

4572322 at *4 (N.D. Ill. July 27, 2015) (“[T]he alleged risks posed by consuming
a soy-rich diet to not rise to the level of an Eighth Amendment violation.”);

Munson v. Gaetz, 957 F.Supp.2d 951, 954 (S.D. Ill. 2013) (finding that
defendants were entitled to qualified immunity because no court has found soy to
be harmful); Smith v. Rector, No. 13-cv-837, 2013 WL 5436371 (S.D. Ill. Sept.
30, 2013)(dismissing claim on vague allegations that prison meals contained too
much soy); Adams v. Talbor, No. 12-2221, 2013 WL 5940630 (C.D. Ill. Nov. 6,
2013) (dismissing prisoner’s claim that a soy based diet caused him to experience
stomach problems).
The court in Riley-El v. Godinez took a particularly nuanced approach: they
permitted the plaintiff’s claim that he had a serious medical condition for which
soy was contraindicated to proceed, but dismissed plaintiff’s claim regarding a
soy diet as a condition of confinement.

2015 WL 4572322 at *4-*5.

Here,

plaintiff has only pleaded a conditions of confinement claim. While he has alleged

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that he suffered various medical symptoms, plaintiff has not alleged that any of
the defendants even knew about his symptoms, much less that they were
deliberately indifferent. He has not alleged that he suffers from any allergy or
condition for which soy is contraindicated.

The Court therefore construes

plaintiff’s claim strictly as a conditions of confinement claim. As a conditions of
confinement claim, it fails. The alleged risks of a soy diet do not rise to the level
of an Eighth Amendment violation.
Alternatively, the Court finds that the defendants are entitled to qualified
immunity on the alleged general health risks of consuming soy.

Qualified

immunity shields government officials from liability where “their conduct does not
violate ‘clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Hardaway v. Meyerhoff, 734 F.3d 740, 743 (7th Cir.
2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Court use a 2
part test to determine whether a defendant is entitled to qualified immunity: 1)
whether the conduct complained of violates the constitution; 2) whether the right
was clearly established at the time the conduct occurred.

Id. at 743 (citing

Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Either element of the test may
be reached first. Pearson, 555 U.S. at 236.
Although qualified immunity is an affirmative defense, the burden of
meeting the two part test rests on the plaintiff. Eversole v. Steele, 59 F.3d 710,
717 (7th Cir. 1995).

The Supreme Court has emphasized the importance of

resolving qualified immunity questions at the earliest stage possible of litigation.

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Saucier v. Katz, 533 U.S. 194, 202 (2001). The Seventh Circuit has also upheld
dismissals on qualified immunity grounds in soy diet cases on a 12(b)(6) motion,
which shares its standard with § 1915A. See Doe v. Village of Arlington Heights,
782 F.3d 911, 916 (7th Cir. 2015). The Court will dismiss on qualified immunity
grounds where the facts of the complaint, taken as true, fail to allege the violation
of a clearly established right.
Here, the Court has not found a single case that concludes that soy-based
diets pose a serious risk to prisoner health generally. It has not found a case that
holds that soy is nutritionally inadequate or that it violates the Constitution. In
fact, the Seventh Circuit specifically declined to hold that a soy-based diet violates
the Constitution in at least one case. Johnson v. Randle, 619 F. App’x 552, 554
(7th Cir. 2015). The Court therefore finds that because no court has found a soybased diet unconstitutional, the right is not clearly established and defendants are
entitled to qualified immunity.
Count 2 alleges a conspiracy amongst all the defendants to offer a soybased diet in order to save the institution money, which plaintiff alleges they are
distributing amongst themselves.

Plaintiff’s allegation that the defendants are

pocketing the money is completely baseless and conclusory. More to the point,
Count 2 does not survive preliminary review because the complaint has not
adequately stated a constitutional claim regarding the soy diet, and without an
underlying constitutional violation, there can be no conspiracy claim.
In the alternative, the complaint offers insufficient allegations in support of

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a conspiracy 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, 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 this early 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.
Further, the complaint also fails to articulate a viable conspiracy claim
against defendants for allegedly implementing a soy diet in order to generate
revenue.

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).

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“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). Count 2 shall be
dismissed without prejudice for failure to state a claim upon which relief may be
granted.
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. Accordingly, Count 3 is dismissed with prejudice as to all defendants.
Pending Motions
Plaintiff’s Motion for Leave to Proceed IFP (Doc. 2) and Motion for
Recruitment of Counsel (Doc. 3) will be addressed by separate orders. Plaintiff’s
Motion for Service of Process at Government Expense (Doc. 3) is hereby DENIED
as moot, as the Court has not found that plaintiff’s complaint states any claim, no
service will be ordered.
Disposition
IT IS ORDERED that COUNT 1 is DISMISSED without prejudice against
all defendants for failure to state a claim upon which relief may be granted and on
qualified immunity grounds. COUNT 2 is DISMISSED in its entirety without

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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 FURTHER ORDERED that, should he wish to proceed with this case,
plaintiff shall file his first amended complaint, stating any facts which may exist to
support a medical indifference claim related to the soy diet, within 28 days of the
entry of this order (on or before April 17, 2017).

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 other pleading. Should the first amended complaint not conform
to these requirements, it shall be stricken. Plaintiff must also re-file any exhibits
he wishes the Court to consider along with the first amended complaint. Failure
to file an amended complaint shall result in the dismissal of this action with
prejudice. Such dismissal shall count as one of plaintiff’s three allotted “strikes”
within the meaning of 28 U.S.C. § 1915(g).
Plaintiff is warned, however, that the Court takes the issue of perjury
seriously, and that any facts found to be untrue in the amended complaint may be
grounds for sanctions, including dismissal and possible criminal prosecution for
perjury. Rivera v. Drake, 767 F.3d 685, 686 (7th Cir. 2014) (dismissing a lawsuit

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as a sanction where an inmate submitted a false affidavit and subsequently lied on
the stand).
No service shall be ordered on any defendant until after the Court
completes its § 1915A review of the first amended complaint.
In order to assist plaintiff in preparing his amended complaint, the Clerk is
DIRECTED to mail plaintiff a blank civil rights complaint form.

Digitally signed by
Judge David R.
Herndon
Date: 2017.03.22
15:34:30 -05'00'

IT IS SO ORDERED.
DATED: March 22, 2017

United States District Court

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