Hardy v. Rauner et al
ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge Nancy J. Rosenstengel on 4/20/2018. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NEDRICK JEFFREY HARDY, SR.,
ILLINOIS DEPARTMENT OF
KIMBERLY BUTLER, and
Case No. 17 cv–1354 NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Nedrick Jeffrey Hardy, an inmate of the Illinois Department of Corrections
(“IDOC”) currently housed at Menard Correctional Center, brings this action pursuant to
42 U.S.C. § 1983 seeking injunctive relief and damages for deprivations of his constitutional
rights. The case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
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). Frivolousness is an objective standard that refers
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (7th Cir. 2000). 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. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; portions of this action are subject to
Plaintiff filed this action on December 14, 2017. (Doc. 1). On April 6, 2018, the Court
determined that some of Plaintiff’s claims were not transactionally related to others and
dismissed Counts 12-23 without prejudice as improperly joined. (Doc. 14). This screening order
now addresses the remaining Counts 1-11 against Rauner, the IDOC, Baldwin, Butler, and
Lashbrook, as well as some motions filed by Plaintiff.
Plaintiff alleges that Menard is overcrowded and that the State of Illinois knows about the
problem. (Doc. 1, pp. 5-6). Plaintiff arrived at Menard in 2014. (Doc. 1, p. 7). As a result of the
overcrowding, Plaintiff has been housed in double-man cells that were designed to house one
inmate. (Doc. 1, p. 19). Plaintiff has been unable to exercise in his cell, and this has caused him
arthritis, knee pain, back pain, headaches, and constipation. Id. Specifically, Plaintiff was
assigned to the North 1 Upper Cell House, the South Uppers, and the South Lowers during his
time at Menard. (Doc. 1, p. 31).
Plaintiff also was inappropriately placed in a cell with an inmate with a history of
violence. (Doc. 1, p. 19). Plaintiff’s cellmate threatened Plaintiff’s life in front of an unnamed
officer, and the officer stated that he would take no action. (Doc. 1, pp. 19-20). Plaintiff wrote a
grievance and was moved. (Doc. 1, p. 20).
Plaintiff also alleges that he is being denied access to the courts. (Doc. 1, p. 21). Menard
only permits inmates to visit the law library once a week. Id. Plaintiff’s visits with his attorneys
are non-contact visits, and when his lawyers have documents for him to inspect, a guard must be
present. Id. On ten different occasions, Plaintiff has made a privileged phone call with his
attorney in a space where he could be overheard by others. (Doc. 1, p. 22). Plaintiff also objects
to the use of a “runner system” in the segregation units, in which other inmates carry legal
documents to the law library. Id. Plaintiff alleges that the system permits inmates to read his
privileged legal documents. Id. Plaintiff’s legal mail has been opened outside of his presence on
more than eighty different occasions between 2014 and 2017. Id. His legal mail was also held for
up to a week. Id.
Plaintiff alleges that he only got to exchange his clothes once every calendar year, despite
having holes in his underwear. (Doc. 1, p. 23).
Menard serves inmates soy products due to budget cuts, which has caused Plaintiff to
experience stomach cramps, constipation, straining, and a hernia. Id. Plaintiff alleges that he
notified Defendants about these conditions, and they were on notice of the conditions from other
lawsuits. (Doc. 1, pp. 23-24).
Plaintiff alleges that the grievance process is insufficient to address problems with staff
conduct. (Doc. 1, pp. 24-25). The State of Illinois, the IDOC, Rauner, Baldwin, Butler, and
Lashbrook are violating their “carceral burden” in ignoring all of the above issues. (Doc. 1,
Menard has no ventilation system, and Plaintiff was subjected to extreme heat
temperatures when he was housed in segregation and placed behind a steel door. (Doc. 1, p. 26).
At an unspecified time, Plaintiff was not given his fan. Id. He alleges that Defendants knew that
the segregation cells were dangerous because other inmates have died. Id. Plaintiff wrote medical
staff and spoke to them face-to-face about his heat sensitivity due to his medications. Id. Medical
staff told Plaintiff he was not heat sensitive. (Doc. 1, p. 27).
There was also black mold in segregation, and specifically in Plaintiff’s cell, for three
months. Id. Plaintiff developed several sinus infections from the black mold. Id. There was also
black mold in the showers of multiple cell houses. Id. The showers in the South Uppers have a
sign on the door warning people not to close the door all the way, suggesting that “they” know
there is mold in the shower. (Doc. 1, p. 31). Plaintiff caught an upper respiratory infection from
this mold and had to be taken to an outside hospital for an IV and antibiotics. (Doc. 1, p. 27).
Plaintiff was placed in a cell with blood and feces on the wall without adequate cleaning
supplies. Id. He also fell as a result of being assigned to the top bunk, which lacks a ladder, and
he hurt his back. (Doc. 1, p. 28).
Plaintiff further alleges that Menard has “ping-pong” toilets which do not adequately
flush and constitute a harm to Plaintiff’s health. Id.
The water on the exercise yard is turned off in the winter, and Plaintiff is not able to bring
a water bottle out with him, causing him to be without water for up to three hours, which is bad
for his high blood pressure. Id.
Defendants do not give Plaintiff the hour of exercise mandated by the Illinois
Administrative Code. Id. This causes Plaintiff back pain, headaches, and constipation. Id.
The cell house is infested with vermin. Id. As a result of the mice, roach, ants, black flies,
and gnat infestation, Plaintiff has lost commissary food. Id. The vermin has also gotten in his
face and property boxes. Id. The kitchen is also infested with pests, including roaches, mice,
birds, flies, and gnats. (Doc. 1, p. 29).
There are cracks in the walls. Id. The water in the sinks and showers frequently smells
bad; Plaintiff believes the sewer lines are backing up into the sinks and showers. Id. As a result,
Plaintiff has itchy skin. Id.
The meal trays are falling apart and unsanitary. (Doc. 1, p. 30). Plaintiff choked on a
piece of plastic once and showed it to the corrections officer, but he just laughed. Id. Likewise,
the cups that the inmates use are not properly cleaned; Plaintiff once got diarrhea from drinking
out of a cup. Id.
In the winter, the heating system does not distribute the air evenly, and cold air blows in
through broken windows, cracks in the windows, and doors. Id. The maintenance men will not
fix these issues. Id.
When Plaintiff was housed in the East and West cell houses at Menard, he was
discriminated against because the administration did not allow these cell houses to go to night
yard, and their commissary purchases were subjected to a dollar amount limit. (Doc. 1, p. 31).
Plaintiff has had to sleep on bedframes on several occasions that were bent, dented,
filthy, and/or lumpy causing him back pain, and numbness in his legs and feet. (Doc. 1, p. 32).
When Plaintiff is sent to segregation, he is denied hygiene products. (Doc. 1, p. 32-33).
Previously, the Court designated eleven counts for this action:
Count 1 –
Baldwin, Butler, IDOC, Lashbrook, and Rauner were deliberately
indifferent to the overcrowded conditions of confinement at
Menard Correctional Center, which caused Plaintiff to be doublecelled in a cell designed for one inmate, in violation of the Eighth
Count 2 –
Baldwin, Butler, IDOC, Lashbrook, and Rauner were deliberately
indifferent to an incident where Plaintiff was celled with a violent
inmate due to overcrowding, in violation of the Eighth
Count 3 –
Baldwin, Butler, IDOC, Lashbrook, and Rauner subjected Plaintiff
to unconstitutional conditions of confinement when he was
assigned to cells that lacked ventilation, were smeared with blood
and feces, had lumpy and painful mattresses and bed frames, were
infested with vermin, had “ping-pong” toilets, lacked ladders, and
deprived him of adequate exercise, exposed him to black mold, and
used contaminated cups in violation of the Eighth Amendment.
Count 4 –
Baldwin, Butler, IDOC, Lashbrook, and Rauner had a policy of
denying inmates adequate access to the courts, in violation of the
Count 5 –
Baldwin, Butler, IDOC, Lashbrook, and Rauner gave Plaintiff an
inadequate clothing allowance, in violation of the Eighth
Count 6 –
Baldwin, Butler, IDOC, Lashbrook, and Rauner subjected Plaintiff
to a soy diet in violation of the Eighth Amendment;
Count 7 –
Baldwin, Butler, Godinez, and Lashbrook had an inadequate
grievance process at Menard Correctional Center in violation of
the First Amendment;
Count 8 –
Baldwin, Butler, IDOC, Lashbrook, and Rauner had a policy that
inmates could not bring water onto the yard, placing Plaintiff at
risk for dehydration, in violation of the Eighth Amendment;
Count 9 –
Baldwin, Butler, IDOC, Lashbrook, and Rauner exposed Plaintiff
to poor quality water, in violation of the Eighth Amendment;
Count 10 –
Baldwin, Butler, IDOC, Lashbrook, and Rauner exposed Plaintiff
to unsanitary and broken meal trays in violation of the Eighth
Count 11 –
Baldwin, Butler, Godinez, Lashbrook, and Rauner intentionally
inflicted emotional distress upon Plaintiff in violation of Illinois
state law due to their refusal to act to correct the unconstitutional
conditions of confinement at Menard.
As explained below, only Counts 1, 2, and 3 survive initial review. The rest will be dismissed.
First, as an initial matter, the IDOC will be dismissed from this action with prejudice
because it is an improper defendant. Plaintiff cannot maintain his suit against the IDOC, because
it is a state government agency. The Supreme Court has held that “neither a State nor its officials
acting in their official capacities are ‘persons’ under § 1983.” Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989). See also Wynn v. Southward, 251 F.3d 588, 592 (7th Cir. 2001)
(Eleventh Amendment bars suits against states in federal court for money damages); Billman v.
Ind. Dep’t of Corr., 56 F.3d 785, 788 (7th Cir. 1995) (state Department of Corrections is immune
from suit by virtue of Eleventh Amendment); Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 427 (7th
Cir. 1991) (same); Santiago v. Lane, 894 F.2d 218, 220 n. 3 (7th Cir. 1990) (same). The
inclusion of the IDOC in this lawsuit is thus improper, and it will be dismissed from all claims
The Court also must clarify some additional points before moving on to Plaintiff’s
individual claims. The complaint frequently lapses into generalities where Plaintiff claims
Defendants’ actions create a risk of harm for the inmates housed at Menard. Plaintiff is only
entitled to assert his own rights in this lawsuit. Massey v. Helman, 196 F.3d 727, 739-40 (7th Cir.
1999). The only harms that the Court will consider are the ones that specifically befell Plaintiff.
The Court will not consider risks to the inmate population generally.
Moreover, Plaintiff alleges that all of his claims are related to a policy of overcrowding at
Menard. This is an implausible allegation. While it may be inferred from some of the factual
allegations in the complaint that overcrowding is related to the conditions Plaintiff’s complains
about, i.e., his claims about two inmates confined to one-man cells, it is difficult to draw the line
between overcrowding and Plaintiff’s other claims. For example, it is not plausible that
overcrowding caused the alleged poor quality water at Menard or caused Defendants not to allow
Plaintiff to bring water onto the yard. For this reason, the Court will evaluate Plaintiff’s claims
based on the factual allegations inherent in each claim and not as part of a larger damages claim
based on overcrowding.
Count 1 alleges that Plaintiff was confined to an overly small cell on multiple occasions.
In a case involving conditions of confinement in a prison, two elements are required to establish
violations of the Eighth Amendment’s cruel and unusual punishments clause. McNeil v. Lane,
16 F.3d 123, 124 (7th Cir. 1993). First, an objective element requires a showing that the
conditions deny the inmate “the minimal civilized measure of life’s necessities,” creating an
excessive risk to the inmate’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994);
Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). Not all prison conditions trigger Eighth
Amendment scrutiny—only deprivations of basic human needs like food, medical care,
sanitation, and physical safety. Rhodes v. Chapman, 452 U.S. 337, 346 (1981). Conditions of
confinement may be considered in combination with each other when each standing alone would
not violate the Eighth Amendment. Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006) (citing
Wilson v. Seiter, 501 U.S. 294, 304 (1991)).
Cases have been clear that the inquiry is whether the conditions inflict the unnecessary
and wanton infliction of pain grossly disproportionate to the severity of the crime. Rhodes v.
Chapman, 452 U.S. 337, 346 (1981). The Rhodes Court found that double-celling was not per se
unconstitutional. Id. at 347. Plaintiff has made it clear, however, that he was subjected to doublecelling in an exceptionally small cell and deprived of exercise opportunities, which resulted in
arthritis, knee pain, back pain, headaches, and constipation. The exercise could act in concert
with the small cell size to create an unconstitutional condition of confinement. See Antonelli v.
Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996). The Court therefore finds that Plaintiff has
adequately pleaded the objective element on his claim that his Eighth Amendment rights were
violated when he was confined in cells too small to exercise for extended periods of time.
Plaintiff also has satisfied the subjective component, which requires that the prison
official had a sufficiently culpable state of mind. Wilson, 501 U.S. at 298; McNeil, 16 F.3d at
124. An official must be deliberately indifferent to health or safety; he or she must be aware of
facts from which the inference could be drawn that a substantial risk of serious harm exists, and
must actually draw the inference. See, e.g., Farmer, 511 U.S. at 837; Wilson, 501 U.S. at 303;
Estelle v. Gamble, 429 U.S. 97, 104 (1976); Del Raine v. Williford, 32 F.3d 1024, 1032 (7th Cir.
Plaintiff has alleged that Defendants were on notice of the conditions at Menard due to
other lawsuits, like Lippert v. Wexford, No. 10 C 4603 (N.D. Ill.). But the deliberate indifference
standard does not use the “notice” standard. It is not enough that Defendants were generally
aware of the conditions of confinement at Menard. Rather, Defendants must know that Plaintiff
was at risk of serious harm and then consciously disregard that risk. As Plaintiff has not alleged
that he participated in Lippert or that it addressed incidents that happened to him, Lippert is not
sufficient to show that Defendants were deliberately indifferent to Plaintiff’s serious needs. The
inquiry is whether (1) Plaintiff himself was at risk of serious at harm; and (2) Defendants
actually inferred that Plaintiff was at risk, but failed to take action to avoid the harm because they
were deliberately indifferent. Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016). Plaintiff has to
plausibly allege that each individual defendant was aware that he was personally subjected to
unconstitutional conditions, not just that there was an increased risk that he might be.
In fact, Plaintiff has alleged that he wrote emergency and regular grievances to the named
Defendants regarding his conditions of confinement. (Doc. 1, p. 16). The Seventh Circuit has
been clear that failure to properly respond to grievances and letters adequately alleges the
subjective element at the pleading stages. Perez v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir.
2015). Plaintiff shall therefore be allowed to proceed with Count 1 against the named
Defendants, although the inquiry shall be into whether Defendants were deliberately indifferent
to Plaintiff’s risk of harm, not whether they were indifferent to the risk of harm to inmates
Count 2 addresses Plaintiff’s claim that he was housed with a known violent inmate due
to overcrowding. The Eighth Amendment is violated when a prison official shows deliberate
indifference to a risk of serious harm. Farmer, 511 U.S. at 828; Brown v. Budz, 398 F.3d 904,
915 (7th Cir. 2005). Deliberate indifference is shown where a plaintiff can point to an objectively
serious need, which may be a medical need, a lack of life’s necessities, or physical injury from
another prisoner, and show that an officer knew of the serious need and subjectively disregarded
it. Farmer, 511 U.S. at 837-38.
Plaintiff has not alleged that he was actually harmed due to the cell placement with an
allegedly violent inmate, but the Seventh Circuit has previously held that an inmate could
recover for the heightened risk of future injury. Wright v. Miller, 561 F. App’x 551, 555 (7th Cir.
2014); but see Saunders v. Tourville, 97 F. App’x 648, 649 (7th Cir. 2004) (finding a claim that
an officer called an inmate a snitch was properly dismissed because an inmate “who suffers only
a risk of physical harm has no compensable claim under the Eighth Amendment”) (citing
Babcock v. White, 102 F.3d 267, 272 (7th Cir. 1996)). Because it appears that there was a period
of time where Plaintiff’s cell placement put him at a heightened risk of serious harm, Count 2
will be permitted to proceed.
But Plaintiff has not adequately pleaded that Rauner and Lashbrook were personally
involved in his cell placement. The complaint is silent on the relevant dates and times that he was
allegedly confined with a violent cellmate, but he has attached a grievance as an exhibit to the
complaint suggesting that he was placed in the cell on July 15, 2016. (Doc. 1-8, p. 38). There is
no indication that Rauner was aware that Plaintiff was placed in the cell with an allegedly violent
inmate; the only correspondence in the record addressed to Rauner is dated January 21, 2016,
approximately six months before the cell placement. (Doc. 1-4, p. 27). If Rauner was unaware of
Plaintiff’s cell placement, he could not have the relevant state of mind. Likewise, Plaintiff’s
emergency grievance on the subject was reviewed by Kim Butler. (Doc. 1-8, p. 38). Lashbrook
succeeded Butler as Warden of Menard. If Butler was still Warden at the time of the relevant
events, there is no reason to believe that Lashbrook was personally involved. Defendants
Lashbrook and Rauner thus will be dismissed without prejudice from Count 2.
Count 3 likewise states a conditions of confinement claim. The Court considered
Plaintiff’s allegations in Count 1 and Count 3 individually because the timeline of Plaintiff’s cell
placements is ambiguous and thus it is not clear that Plaintiff was double-celled in one man cells
during the same time period that he was exposed to the other conditions about which he
complains. In fact, it may become clear during the course of this suit that certain conditions did
not arise in combination with other conditions, which may require the Court to evaluate them
individually later. But it is a plausible reading of the complaint that the conditions arose together,
and the Court is required to construe all the inferences in the complaint in Plaintiff’s favor at this
stage of the proceedings.
Plaintiff has alleged that he has been exposed to conditions of confinement that have
exposed him to various health risks like vermin, feces, black mold, and contaminated food trays.
He has further alleged that he suffered from respiratory infections and vomiting as a result of the
exposure and that he lost commissary items due to the vermin. Plaintiff has further alleged that
he was housed in cells that lacked ventilation, making it overly hot in the summer and cold in the
winter, exposing him to temperature extremes. He has further alleged that he was given damaged
bed frames, which injured his back. As Plaintiff has alleged multiple harms and injuries arising
out of his conditions of confinement, he has adequately stated an Eighth Amendment violation in
A final note about Count 3 is needed. The Court did not include Plaintiff’s allegation that
he was deprived of night yard as part of his conditions of confinement claim because night yard
is a privilege and not a right guaranteed by the Constitution. See Miller v. Dobier, 634 F.3d 412,
414-15 (7th Cir. 2011) (loss of privileges is not a liberty deprivation and states no claim).
Plaintiff has also characterized this as an act of “discrimination,” but he has not alleged that he is
a member of a protected class or that those outside of the protected class were treated differently
from him. Doss v. Gilkey, 649 F.Supp.2d 905, 915 (S.D. Ill. 2009). Plaintiff’s claim about night
yard is not cognizable under the Eighth Amendment, and to the extent that Plaintiff is alleging
that he was subjected to unconstitutional conditions of confinement on that basis, the claim is
dismissed without prejudice.
All of Plaintiff’s other claims also must be dismissed at this time. In Count 4, Plaintiff
alleges that he has been deprived of access to the courts based on Defendants’ various
objectionable policies. But Plaintiff has not made enough allegations to sustain his claim. The
Seventh Circuit uses a two-part test to decide if prison administrators have violated the right of
access to the courts. Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004). First, the prisoner must
show that prison officials interfered with his legal materials. Devbrow v. Gallegos, 735 F.3d 584,
587 (7th Cir. 2013) (citing Lewis v. Casey, 518 U.S. 343, 348 (1996)). Second, he must be able
to show “some quantum of detriment caused by the challenged conduct of state officials resulting
in the interruption and/or delay of plaintiff’s pending or contemplated litigation.” Alston v.
DeBruyn, 13 F.3d 1036, 1041 (7th Cir. 1994); see also Lehn, 364 F. 3d at 868. That means that a
detriment must exist, a detriment resulting from illegal conduct that affects litigation. To state a
claim, a plaintiff must explain “the connection between the alleged denial of access to legal
materials and an inability to pursue a legitimate challenge to a conviction, sentence, or prison
conditions,” Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009) (internal quotation and citation
omitted); accord Guajardo-Palma v. Martinson, 622 F.3d 801, 805-06 (7th Cir. 2010). This
requires Plaintiff to identify the underlying claim that was lost. See Christopher v. Harbury, 536
U.S. 403, 416 (2002); Steidl v. Fermon, 494 F.3d 623, 633 (7th Cir. 2007).
Plaintiff has articulated a litany of grievances against the way his legal matters are
handled at Menard, but he has not actually alleged that any meritorious claim was lost as a result
of Defendants’ conduct or policies. As a result, Count 4 will be dismissed without prejudice.
In Count 5, Plaintiff alleges he only received new clothes and towels once a year due to
budget cuts and overcrowding. As a result, Plaintiff was forced to go around with holes in his
underwear. Like Plaintiff’s other claims, this count also arises under the Eighth Amendment. “A
prison official’s act or omission [that] result[s] in the denial of the minimal civilized measure of
life’s necessities” violates the Eighth Amendment. Farmer, 511 U.S. at 834; Myers v. Indiana
Dep’t of Corr., 655 F. App’x 500, 503–04 (7th Cir. 2016), reh’g denied (July 28, 2016). Those
necessities include clothing, sanitation, and hygienic materials. See id. at 832; Townsend v.
Cooper, 759 F.3d 678, 687 (7th Cir. 2014); Townsend v. Fuchs, 522 F.3d 765, 774 (7th Cir.
2008); Gillis v. Litscher, 468 F.3d 488, 493–94 (7th Cir. 2006). A prisoner may state a claim
based on the condition of his clothing if the clothing is inadequate to deal with the conditions to
which he is exposed, like extreme weather. Mays v. Springborn, 575 F.3d 643, 648 (7th Cir.
Plaintiff has not alleged that he was harmed by the failure to replace his clothing more
frequently than once a year. Myers, 655 F. App’x at 504 (“[Plaintiff] may be upset that his
[clothing] items were discolored and ‘smell[ed] like sweaty gym clothes.’ Deficiencies in
whiteness and freshness alone, however, do not fall short of the minimal necessities that the
Eighth Amendment requires for basic dignity.”). Plaintiff has not alleged that he lacked clothes
entirely; his claim appears to be premised on the quality of his clothes due to the infrequency of
clothing exchanges. And like the plaintiff in Myers, Plaintiff has also failed to allege that he
suffered any harm from the conditions of his clothes, or that he was at risk of any harm. A few
holes in the crotch of some underwear is not the kind of harm recognized by the Eighth
Amendment. Accordingly, Count 5 will be dismissed without prejudice.
In Count 6, Plaintiff alleges that he has been served soy products in violation of the
Eighth Amendment. 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 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. 13-2221-JES-JAG, 2013 WL
5940630 (C.D. Ill. Nov. 6, 2013) (dismissing prisoner’s claim that a soy based diet caused him to
experience stomach problems).
To the extent that Plaintiff is attempting to allege that a soy diet is an unconstitutional
condition of confinement, the claim fails. The alleged risks of a soy diet do not rise to the level
of a serious harm under the Eighth Amendment.
Alternatively, the Court finds that 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)).
Courts use a two part test to determine whether a defendant is entitled to qualified immunity:
(1) whether the conduct complained of violates the Constitution; and (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 motion brought
pursuant to Federal Rule of Civil Procedure 12(b)(6), 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 6 will be dismissed with prejudice.
Plaintiff puts the grievance process itself at issue in Count 7, but his allegations fail to
state a claim. “A state’s inmate grievance procedures do not give rise to a liberty interest
protected by the Due Process Clause.” Antonelli, 81 F.3d at 1430. The Constitution requires no
procedure at all, and the failure of state prison officials to follow their own procedures does not,
of itself, violate the Constitution. Maust v. Headley, 959 F.2d 644, 648 (7th Cir. 1992); Shango v.
Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982). Accordingly, Count 7 will be dismissed with
In Count 8, Plaintiff has alleged that the water is turned off to the outside yard at Menard
during the colder winter months. He has further alleged that he is not permitted to bring his own
water out on the yard at these times, putting him at risk of dehydration. But Plaintiff has not
alleged that he actually suffered from dehydration or any other harm as a result of not being
allowed to bring a water bottle out on the yard. Section 1983 is a tort statute, so plaintiff must
have suffered a harm to have a cognizable claim. Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir.
2009); Doe v. Welborn, 110 F.3d 520, 523 (7th Cir. 1997). The Court is also not prepared to say
that yard time without access to running water creates a risk of harm so grave so as to violate the
Eighth Amendment. Count 8 will be dismissed without prejudice for failure to state a claim.
Plaintiff alleges in Count 9 that he was exposed to poor quality water. Unfortunately,
however, this claim suffers from the same problems as Count 8. Plaintiff has alleged that the
water “smells” and makes his skin itch. But Plaintiff has not described the itching in such a way
that the Court could conclude from his allegations that the itching amounts to a serious problem.
For example, he has not alleged that he sought medical attention for his skin condition.
Plaintiff’s claim that the itchiness is caused by feces in the water is also entirely speculative. For
these reasons, Plaintiff’s claims regarding water quality will be dismissed without prejudice for
failure to state a claim.
Plaintiff also inadequately pleaded Count 10. Plaintiff alleges that he choked on a piece
of plastic from the trays because the trays are breaking down in the chow hall. But Plaintiff has
not alleged that he suffered any harm as a result of the choking incident. In fact, he has alleged
that he was able to remove the obstruction himself to show it to a guard. Plaintiff has not alleged
that he sought medical attention or had a physical injury. Moreover, Plaintiff has not alleged that
any of the named Defendants had a culpable state of mind, that is, that they knew the condition
of the trays was such to pose a serious risk of harm to Plaintiff. On these facts, Count 10 will be
dismissed without prejudice.
Plaintiff’s last claim arises under state law. Count 11 alleges that Defendants
intentionally inflicted emotional distress (“IIED”) upon Plaintiff. Under Illinois law, a plaintiff
claiming intentional infliction of emotional distress must demonstrate that the defendant
intentionally or recklessly engaged in “extreme and outrageous conduct” that resulted in severe
emotional distress. Sornberger v. City of Knoxville, Ill., 434 F.3d 1006, 1030 (7th Cir. 2006); see
Lopez v. City of Chi., 464 F.3d 711, 720 (7th Cir. 2006). The tort has three components: (1) the
conduct involved must be truly extreme and outrageous; (2) the actor must either intend that his
conduct inflict severe emotional distress, or know that there is at least a high probability that his
conduct will cause severe emotional distress; and (3) the conduct must in fact cause severe
emotional distress. McGrath v. Fahey, 533 N.E.2d 806, 809 (Ill. 1988). To be actionable, the
defendant’s conduct “must go beyond all bounds of decency and be considered intolerable in a
civilized community.” Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001) (citing Kolegas v.
Heftel Broad. Corp., 607 N.E.2d 201, 211 (Ill. 1992); Campbell v. A.C. Equip. Servs. Corp., Inc.,
610 N.E. 2d 745, 749 (Ill. App. 1993)). Whether conduct is extreme and outrageous is judged by
an objective standard, based on the facts of the particular case. Honaker, 256 F.3d at 490.
Plaintiff has not adequately pleaded an IIED claim. First, it is debatable whether the
conduct Plaintiff complains of truly rises to the level of extreme and outrageous, which is a high
bar. See Lopez v. City of Chicago, 464 F.3d 711, 720-21 (7th Cir. 2006) (detainee had viable
IIED claim where he alleged that he was chained to a wall for 4 days and only received food and
drink once during that time period); Honaker v. Smith, 256 F.3d 477, 492-93 (7th Cir. 2001)
(setting a fire to burn someone’s house down would constitute “extreme and outrageous”
conduct); Williams v. Erickson, 962 F.Supp.2d 1038, 1043 (N.D. Ill. 2013) (inmate stated viable
IIED claim where he alleged that nurse failed to assist him in changing his colostomy bag,
causing him to lay in his own feces for four hours).
But even assuming that it does, Plaintiff has not adequately alleged that Defendants had
the requisite mental state to inflict serious harm upon him personally. In fact, Plaintiff has used
the deliberate indifference standard in pleading his IIED claim, that is, he has alleged that
Defendants were aware of a specific risk of harm to inmates generally, through other lawsuits
and court findings, and took no action to avert those risks. In contrast to Section 1983, nothing
permits Plaintiff to bring an IIED claim based on an impermissible policy or custom. Defendants
must have intended to inflict Plaintiff with severe emotional distress, and Plaintiff’s argument
that they knew that their conduct recklessly risked doing so based on lawsuits filed by other
prisoners does not establish the requisite intent. Therefore, Plaintiff’s IIED claim will also be
dismissed without prejudice.
Plaintiff has filed a Motion for Status. As this order will serve as a status of the case, this
motion (Doc. 13) is moot.
Plaintiff also filed a motion seeking to reconsider the Court’s prior dismissal of Counts
21 and 23 of this action as being transactionally unrelated to the remaining claims. (Doc. 15). As
an initial matter, Plaintiff’s Motion repeatedly states that the Court found that Counts 1-11 had
merit in its previous order. This is incorrect; the Court did not weigh the merits of any claim in
its previous order. Instead, it considered whether Plaintiff’s many claims were properly joined
pursuant to the Federal Rules of Civil Procedure, and dismissed certain claims as improperly
joined. The Court did not state that Plaintiff would be allowed to proceed on Counts 1-11 or
order service; it merely found those claims transactionally related.
Nevertheless, Plaintiff argues that the Court was wrong to dismiss Counts 21 and 23.
Federal Rule of Civil Procedure 54(b) states:
any order . . . which adjudicates fewer than all of the claims . . . shall not
terminate the action as to any of the claims . . . and the order . . . is subject to
revision at any time before the entry of judgment. . . .
Under this rule, a court may reconsider its own orders that dispose of less than the entire case
prior to final judgment. Moses H. Cone Mem. Hosp. v. Mercury Const. Corp, 460 U.S. 1 (1983).
The Court may, sua sponte or on motion, correct clear errors of fact or law in an interlocutory
order. Diaz v. Indian Head Inc., 686 F.2d 558, 562-63 (7th Cir. 1982). The purpose of a motion
to reconsider is to correct manifest errors of law or fact or to present newly discovered evidence.
Caisse Nationale de Credit Agricole v. CBI Indus. Inc., 90 F.3d 1264, 1269 (7th Cir. 1996).
Reconsideration is also appropriate where “the Court has patently misunderstood a party, or has
made a decision outside the adversarial issues presented to the Court by the parties, or has made
an error not of reasoning but of apprehension.” Bank of Waunakee v. Rochester Cheese Sales,
Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citing Above the Belt, Inc. v. Mel Bohannan Roofing,
Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). “A manifest error is not demonstrated by the
disappointment of the losing party, instead it is the wholesale disregard, misapplication, or
failure to recognize controlling precedent.” Oto v. Metropolitan Life Ins. Co., 224 F.3d 601, 606
(7th Cir. 2000).
Count 21 raised an IIED claim against Asselmeier, Doe #1, Doe #2, Hinton, Newbold,
Rauner, Siddiqi, Trost, and Wexford based on all of the alleged deficiencies that Plaintiff has
experienced in his medical care from 2015 to the present. Count 23 raised a claim against IDOC
and Wexford for refusing to develop policies to accommodate Plaintiff’s alleged disability.
Plaintiff alleges that these claims were properly joined to this action because he believes that the
deficiencies in his medical care are related to overcrowding in Illinois prisons. As explained
above, it is not plausible that overcrowding caused all of the problems that Plaintiff complains
about. But more to the point, the factual basis of the claims remains distinct from Plaintiff’s other
Plaintiff argues in his motion that he suffered physical harm as a result of the
unconstitutional conditions of confinement and that he was denied adequate medical care for
those harms, thereby providing grounds to raise an IIED claim as to the medical care. But that is
not the same issue that was originally raised in Count 21. The complaint alleges that he suffered
certain physical harms (respiratory infections, aches, and pains) as a result of the unconstitutional
conditions of confinement, but his dismissed medical claims alleged that certain individuals
intentionally inflicted emotional distress upon Plaintiff by failing to address his eyesight, carpal
tunnel syndrome, dislocated finger, high blood pressure, inadequate dental care, ADD, and
disability accommodations. The harms that Plaintiff alleged flowed from the unconstitutional
confinement are not the same harms at issue from his medical claims, and thus the factual
underpinnings are distinct. In order to assess the IIED claim from Count 21, the Court would
have to inquire into the circumstances and provision of Plaintiff’s medical care to determine if
the alleged delays and denials amounted to “extreme and outrageous conduct.” There is no
factual overlap between that inquiry and the inquiry required by the claims present in this case.
Therefore, the claims are not transactionally related, and the Court finds no error in its decision
to dismiss Count 21 without prejudice.
The same logic applies to Count 23. Plaintiff alleges that he is disabled (although his
exhibits repeatedly suggest that the prison does not consider him disabled) and that the prison
has refused to accommodate him. This claim requires the Court to inquire into Plaintiff’s alleged
disability and the programs and services he alleges that he was denied access to as a result of his
disability. Currently, none of the claims present in this lawsuit requires inquiry into those
subjects. Count 23 is therefore not transactionally related to the other claims in this lawsuit, and
the Court can find no error in its decision to dismiss that claim. Of course, as the prior dismissal
was without prejudice, Plaintiff remains free to bring Counts 21 and 23 and any related claims in
separate lawsuits, as the Court previously instructed him.
Because Plaintiff has not articulated any legal error or misapprehension, the Court will
deny his Motion for reconsideration. (Doc. 15).
Plaintiff’s Motions for appointment of counsel and preliminary injunctive relief (Docs. 2,
3, 6, and 7) are referred to United States Magistrate Judge Donald G. Wilkerson for prompt
IT IS HEREBY ORDERED that Counts 1 and 3 survive threshold review against
Defendants Rauner, Baldwin, Butler, and Lashbrook. Count 2 survives against Defendants
Baldwin and Butler; Rauner and Lashbrook are DISMISSED without prejudice from Count 2.
Defendant Illinois Department of Corrections is DISMISSED with prejudice from this lawsuit.
Counts 4-5, 8-11 are DISMISSED without prejudice. Counts 6 and 7 are DISMISSED with
Plaintiff’s Motion for Status (Doc. 13) is DENIED as moot. Plaintiff’s Motion to
Reconsider the severance order of April 6, 2018 (Doc. 15) is DENIED.
IT IS ORDERED that the Clerk of Court shall prepare for Defendants Rauner, Baldwin,
Butler, and Lashbrook: (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 United States Magistrate
Judge Donald G. Wilkerson for further pre-trial proceedings.
Further, this entire matter is REFERRED to United States Magistrate Judge Donald G.
Wilkerson 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.
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).
DATED: April 20, 2018
NANCY J. ROSENSTENGEL
United States District Judge
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