Walker v. Wexford Medical Provider et al

Filing 11

ORDER REFERRING CASE to Magistrate Judge Reona J. Daly. Signed by Judge J. Phil Gilbert on 10/25/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANDREW J. WALKER,
Plaintiff,
vs.
WEXFORD MEDICAL PROVIDER,
MCGLORN,
AMY LANG, and
GAIL WALLS,
Defendants.

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Case No. 17-cv-0933-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Andrew J. Walker, an inmate currently incarcerated at Pontiac Correctional
Center, brings this pro se action for alleged violations of his constitutional rights under 42 U.S.C.
§ 1983 for events that occurred at Menard Correctional Center. (Doc. 1). Specifically, Plaintiff
alleges that Defendants conspired to violate his Eighth and Fourteenth Amendment rights by
serving him a soy-based diet. He seeks compensatory damages and declarative relief.
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
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Plaintiff alleges that the Illinois Department of Corrections (“IDOC”) began using a
soy/turkey meat substitute in place of beef in 2002. (Doc. 1, p. 4). When Plaintiff entered IDOC
custody in 2014, he began suffering from gastrointestinal problems, painful cramping, bloating,
and constipation. Id. Over time, his symptoms worsened. Id. Plaintiff self-administered an
empirical food sensitivity test, and became convinced that his problems are associated with the
soy in his diet. (Doc. 1, p. 5). Plaintiff’s family also performed internet research that persuaded
him that his symptoms are identical to food allergies associated with soy consumption. Id.
Despite Plaintiff’s research, McGlorn and Lang refused to prescribe a soy-free diet or treat
Plaintiff for any food allergies. Id. Lang told Plaintiff that he just needed to eat around any soy
on his tray. Id.
Plaintiff was tested for prostate problems, which came back negative. (Doc. 1, p. 6). He
was also given docusate sodium, a stool softener, and fiber lax, which helped his symptoms for a
short time. Id. But ultimately, Plaintiff’s problems continued to affect him and he continued to
seek medical treatment. Id. Wexford staff refused to do anything but prescribe docusate sodium
and fiber lax. Id.
Plaintiff saw McGlorn and Lang on January 12, 2016. Id. He told McGlorn that he was
suffering from gastro-intestinal problems, including bloating to the point of cramping, obstructed
urination, trouble defecating on a regular basis, hemorrhoids, and estrogen symptoms, like
weight gain and breast development. Id. McGlorn re-prescribed docusate sodium and fiber lax.
(Doc. 1, p. 7). Plaintiff wrote letters to the Warden, the dietary supervisor, and the healthcare
administrator, but his letters were ignored. Id.
Plaintiff alleges that Wexford is engaged in a conspiracy to deny the fact that soy is
detrimental to inmates’ health. (Doc. 1, pp. 7-8).
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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. The following
claim survives threshold review:
Count 1: McGlorn, Lang, and Walls, were deliberately indifferent to Plaintiff’s
serious medical needs when they persisted in a course of treatment known to be
ineffective with regards to Plaintiff’s gastrointestinal and estrogen symptoms in
violation of the Eighth Amendment.
Plaintiff has attempted to bring another claim, but for the reasons described below, this
claim will be dismissed at this time:
Count 2: Wexford engaged in a conspiracy to deny that soy is detrimental to
inmates’ health in violation of the Eighth Amendment.

As to Plaintiff’s Count 1, prison officials impose cruel and unusual punishment in
violation of the Eighth Amendment when they are deliberately indifferent to a serious medical
need. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Chatham v. Davis, 839 F.3d 679, 684 (7th
Cir. 2016). In order to state a claim for deliberate indifference to a serious medical need, an
inmate must show that he 1) suffered from an objectively serious medical condition; and 2) that
the defendant was deliberately indifferent to a risk of serious harm from that condition. Petties v.
Carter, 836 F.3d 722, 727 (7th Cir. 2016). An objectively serious condition includes an ailment
that has been “diagnosed by a physician as mandating treatment,” one that significantly affects
an individual’s daily activities, or which involves chronic and substantial pain. Gutierrez v.
Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). The subjective element requires proof that the
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defendant knew of facts from which he could infer that a substantial risk of serious harm exists,
and he must actually draw the inference. Zaya v. Sood, 836 F.3d 800, 804 (7th Cir. 2016) (citing
Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
“Delaying treatment may constitute deliberate indifference if such delay exacerbated the
injury or unnecessarily prolonged an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th
Cir. 2012) (internal citations and quotations omitted); see also Farmer v. Brennan, 511 U.S. 825,
842 (1994). The Eight Amendment does not give prisoners entitlement to “demand specific
care” or “the best care possible,” but only requires “reasonable measures to meet a substantial
risk of serious harm.”

Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).

Deliberate

indifference may also be shown where medical providers persist in a course of treatment known
to be ineffective. Berry v. Peterman, 604 F.3d 435, 441-42 (7th Cir. 2010); Greeno v. Daley,
414 F.3d 645, 655 (7th Cir. 2005).
Here Plaintiff has alleged that he suffered persistent gastrointestinal symptoms. It is
unclear how serious Plaintiff’s symptoms are, but at the pleading stages, he has alleged enough
to make it plausible that he suffered from a serious medical need. Plaintiff has also alleged that
the treatment he was given only temporarily alleviated his symptoms, but despite this, no
alternative treatment was offered. These facts state a plausible claim for deliberate indifference.
While Plaintiff has alleged that McGlorn and Lang were actually involved in his care, his
allegation as to Walls is slightly different. Plaintiff alleges that he made Walls aware of his
condition through kites and grievances, but that she declined to act. As written notice is an
adequately allegation of personal involvement at the pleading stages, Plaintiff’s claims against

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Walls will be permitted to proceed at this time.1 Perez v. Fenoglio, 792 F.3d 768, 781-82 (7th
Cir. 2015).
However, Count 2 must be dismissed. Plaintiff’s allegation is that Wexford denies that a
soy diet is detrimental to Plaintiff’s health. For purposes of § 1983, the courts treat “a private
corporation acting under color of state law as though it were a municipal entity,” Jackson v. Ill.
Medi–Car, Inc., 300 F.3d 760, 766 n.6 (7th Cir. 2002), so Wexford will be treated as a municipal
entity for this suit. “[T]o maintain a § 1983 claim against a municipality, [a plaintiff] must
establish the requisite culpability (a ‘policy or custom’ attributable to municipal policymakers)
and the requisite causation (the policy or custom was the ‘moving force’ behind the
constitutional deprivation).” Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir. 2002)
(quoting Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978)).
Plaintiff’s allegation that Wexford has a policy of denying that a soy diet is detrimental to
inmates’ health fails to state a claim because it is not established that serving a soy diet violates
the Constitution. 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 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
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Plaintiff has alleged that he wrote several other prison officials and apprised them of his condition, but he
has not listed those individuals in the case caption or among the defendants, Fed. R. Civ. P. 10, and so the Court has
not construed the Complaint as making a claim against those individuals.

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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-cv837, 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).
Alternatively, the Court finds that Wexford is entitled to qualified immunity. 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)). The Court uses a two 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. 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,
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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 soy-based diet unconstitutional, the right is not clearly established
and Wexford is entitled to qualified immunity.
To the extent that Plaintiff alleges that Wexford is engaged in a conspiracy, that claim
also fails. As an initial matter, Plaintiff has not identified any other member of the conspiracy.
More to the point, because the Complaint has not adequately stated a constitutional claim
regarding the soy diet, there can be no conspiracy claim regarding it. In the alternative, the
Complaint also offers insufficient allegations in support of 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
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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 Wexford for failing to accept Plaintiff’s conclusion that a soy diet is detrimental.
Further, 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).
For all of the above reasons, Count 2 shall be dismissed with prejudice.
Pending Motions
Plaintiff’s Motion for Recruitment of Counsel is referred to a United States Magistrate
Judge for disposition. (Doc. 3).
Plaintiff’s Motion for Leave to Proceed in forma pauperis is DENIED as MOOT. (Doc.
10). Plaintiff initially moved to proceed in forma pauperis on August 31, 2017. (Doc. 2). That
Motion was granted on September 21, 2017. (Doc. 8). The Court received Plaintiff’s initial
partial filing fee on October 23, 2017. As the Court has already granted the relief requested in
the motion, the motion is moot. (Doc. 10).
Disposition
IT IS ORDERED that COUNT 1 survives threshold review against McGlorn, Lang, and
Walls. COUNT 2 is DISMISSED with prejudice for failure to state a claim and on the grounds
of qualified immunity. Wexford is DISMISSED with prejudice. Plaintiff’s Motion to Proceed
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IFP is DENIED as MOOT. (Doc. 10).
IT IS ORDERED that the Clerk of Court shall prepare for Defendants McGlorn, Lang,
and Walls: (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.
IT IS FURTHER ORDERED that, 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 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.
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 a United States
Magistrate Judge for further pre-trial proceedings.
Further, this entire matter is REFERRED to a United States Magistrate Judge for
disposition, as contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the
parties consent to such a referral.
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IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff and the
judgment includes the payment of costs under Section 1915, Plaintiff will be required to pay the
full amount of the costs, notwithstanding 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
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: October 25, 2017

s/_J. Phil Gilbert_____________________
U.S. District Judge

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