Dismukes v. Baldwin et al

Filing 9

ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Judge David R. Herndon on 6/7/2018. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JARREL DISMUKES, # M41864,
Plaintiff,
vs.

Case No. 18-cv-1060-DRH

JOHN BALDWIN,
S.A. GODINEZ,
GLADYSE C. TAYLOR,
MICHAEL P. RANDLE,
ROBERT MUELLER,
SUSAN WALKER,
PATTY THULL,
and JOHN/JANE DOE,
Defendants.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Plaintiff, currently incarcerated at Centralia Correctional Center, has
brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. He claims
that Defendants knowingly served beverages which were contaminated with unsafe
levels of benzene with deliberate indifference to the risks to inmates’ health.
Plaintiff alleges that as a result, he has developed GERD and other physical
symptoms.

Plaintiff has pointed out that the claims raised herein are largely

duplicative of those raised in a 2017 case by another Centralia prisoner-plaintiff,

Trainor v. Baldwin, Case No. 17-cv-369-DRH-DGW. (Doc. 3).
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 screen
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prisoner complaints to filter out non-meritorious claims.

See 28 U.S.C.

§ 1915A(a). The Court must 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). Frivolousness is an

objective standard that refers to a claim that “no reasonable person could
suppose to have any merit.” Lee v. Clinton, 209 F.3d 1025, 1026-27 (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.

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).
Applying these standards, the Court finds that some of Plaintiff’s claims
survive threshold review under § 1915A.
The Complaint
Plaintiff brings his claims against current Director of the Illinois
Department of Corrections (“IDOC”) Baldwin, as well as former IDOC Directors
Godinez, Randle, and Taylor.

(Doc. 1, pp. 1-2).

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Other Defendants include

Centralia Warden Mueller, Grievance Officer Walker, Administrative Review Board
official Thull, and a number of John/Jane Does.

This group of Unknown

Defendants encompasses Superintendents of the Illinois Correctional Industry
(“ICI”) who distributed contaminated juices to IDOC prisons and dietary
managers who served the juices. (Doc. 1, p. 3).
According to Plaintiff, in 1991 the FDA reported that benzene had been
found in products that contained sodium benzoate along with ascorbic acid, citric
acid, or erthoribic acid. This combination of ingredients can produce benzene, so
the FDA “called on manufacturers to take measures to impede the formation of
benzene in their products.”

Id. The Environmental Protection Agency reported

that 5 parts per billion was the maximum acceptable level of benzene in drinking
water. Id. Further, people exposed to higher levels of benzene, even for short
periods of time, may develop anemia, nervous system disorders, and immune
system depression. Id. A published CDC report states that exposure to benzene
may cause dizziness, rapid or irregular heartbeat, vomiting, convulsions,
sleepiness, and stomach irritation. (Doc. 1, pp. 5, 13).
In 2008, union members working within the IDOC raised concern about
benzene in drink products served to IDOC employees.

(Doc. 1, p. 3).

This

concern was never investigated by Randle, Godinez, Baldwin, Mueller, or the
Illinois Correctional Industry John/Jane Doe defendants. The Dietary Manager
John/Jane Doe defendants continued to use the combination of ingredients listed
above in beverages served to IDOC inmates. (Doc. 1, pp. 3-4).

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Plaintiff

consumed

the

allegedly

contaminated

juices

during

his

confinement. (Doc. 1, p. 4). In fact, he “worked in the Dietary for over a year and
consumed 10-15 juices per day during that time.” (Doc. 1, p. 5). He developed
GERD and experienced “several symptoms related to the combination [of]
ingredients that formed benzene in the drinks.” (Doc. 1, p. 4). When Plaintiff
learned about the risks from excessive consumption of benzene, he filed a
grievance about the issue, seeking an investigation.

Walker (grievance officer)

denied the request, and Warden Mueller affirmed that denial. (Doc. 1, pp. 4-5).
Plaintiff appealed the grievance to Thull, who also denied it, noting that the prison
properly addressed his issue. (Doc. 1, p. 5). At some unspecified time, for about
4-5 months, the prison stopped serving the juices containing the benzeneproducing ingredients, but then began to serve them to inmates again. (Doc. 1, p.
4).
Plaintiff claims that Baldwin, Godinez, Taylor, Randle, and all John/Jane
Does “knew about the concerns of the juices since 1998 and the formation of
benzoate and ascorbic acid forming benzene, yet they failed to ensure that these
products did not contain these ingredients.” (Doc. 1, p. 6). The John/Jane Does
deliberately manufactured and distributed the juice products to prisoners, despite
knowing that they “would tend to contain unsafe levels, placing prisoners at risk.”

Id. Baldwin, Godinez, Taylor, and Randle did nothing to address the health risks,
of which they were aware. Id. Plaintiff was involuntarily exposed to benzene in
the juices served with prison meals, without any warning of the hazard. Id. The

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juice consumption created an unreasonable risk to his health. Id. He alleges that
benzene can cause cancer. (Doc. 1, p. 7).
Plaintiff asserts that Defendants’ actions violated the Eighth Amendment.
He seeks declaratory relief, as well as compensatory and punitive damages. (Doc.
1, p. 8). He also requests that Defendants discontinue manufacturing the juices
in question. Id.
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to
divide the pro se action into the following counts. 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 as to their merit. Any other claim that is mentioned in
the Complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1: Eighth Amendment claim against the John/Jane Doe ICI
Superintendents, for deliberate indifference to the present and future
health risks to Plaintiff from consuming its juice drinks, which
contain ingredients that may produce benzene;
Count 2: Eighth Amendment claim against Baldwin, Godinez,
Taylor, and Randle, for deliberate indifference to the present and
future health risks to Plaintiff from consuming ICI-produced juice
drinks, which contain ingredients that may produce benzene;
Count 3:
Eighth Amendment claim against Mueller and the
John/Jane Doe Dietary Managers, for deliberate indifference to the
present and future health risks to Plaintiff from consuming ICIproduced juice drinks, which contain ingredients that may produce
benzene;

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Count 4: Eighth Amendment claim against Walker and Thull, for
deliberate indifference to the present and future health risks to
Plaintiff from consuming ICI-produced juice drinks, which contain
ingredients that may produce benzene.
Accepting Plaintiff’s allegations as true, Counts 1, 2, and 3 shall proceed for
further review.

Plaintiff shall note that his claims against the John/Jane Doe

Defendants cannot go forward until one or more of these Unknown Party
Defendants is identified by name. Count 4 shall be dismissed for failure to state a
claim upon which relief may be granted.
Eighth Amendment Deliberate Indifference Claims
The Eighth Amendment prohibition on cruel and unusual punishment
forbids unnecessary and wanton infliction of pain, and punishment grossly
disproportionate to the severity of the crime. Rhodes v. Chapman, 452 U.S. 337,
346 (1981) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Two elements
are required to establish a violation of the Eighth Amendment’s cruel and unusual
punishments clause with regards to any conditions of confinement in prison.
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). The
objective conditions must have resulted in an unquestioned and serious
deprivation of basic human needs such as food, medical care, sanitation, or
physical safety. Rhodes, 452 U.S. at 347.
The second requirement is a subjective element – establishing a defendant’s
culpable state of mind, which is deliberate indifference to a substantial risk of
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serious harm to the inmate from those conditions. Farmer, 511 U.S. at 837, 842.
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 from the conditions. Farmer, 511 U.S. at 842. It is wellsettled that mere negligence is not enough. See, e.g., Davidson v. Cannon, 474
U.S. 344, 347-48 (1986).
Occasional instances of food or water contamination in prison will not
support an Eighth Amendment deliberate indifference claim. See, e.g., McRoy v.

Aramark Correctional Servs., Inc., 268 F. App’x 479 (7th Cir. 2008) (no deliberate
indifference where inmate was served undercooked chicken on one occasion, sour
milk on six occasions, and spoiled sandwich meat on three occasions, where
inmate was offered replacement items when available, and no further incidents
occurred).

Likewise, where the health risks from consuming allegedly tainted

water are the same for prison inmates as for the general population, no Eighth
Amendment claim is stated. See Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir.
2001) (the Constitution does not require a confining institution “to provide a
maximally safe environment, one completely free from pollution or safety
hazards”) (internal citation omitted).
However, where a prisoner’s complaint indicates that prison officials were
aware of a pattern of ongoing incidents where inmates were injured by
contaminated food, yet did nothing to mitigate the risk, a viable deliberate
indifference claim may be stated. See Green v. Beth, 663 F. App’x 471, 472 (7th

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Cir. 2016) (district court should not have dismissed claims by plaintiff who
described an “ongoing” problem of injuries suffered by inmates from biting into
foreign objects in the food served in jail, and lack of action by defendants).
Here, Plaintiff alleges he suffered various symptoms after consuming the
allegedly benzene-tainted juice, including GERD, and he believes these symptoms
may have resulted from this exposure.

He also notes that the long-term

consumption of the juice containing the components that produce benzene may
lead to future health problems, including a risk of cancer. These symptoms and
potential future health risks arguably meet the objective requirement of an Eighth
Amendment claim, at least at this early pleading stage.
Few cases have been brought alleging that unsafe levels of benzene may be
found in drinks which contain sodium benzoate and ascorbic or other acids. See,

e.g., Gonzalez v. Pepsico, Inc., et al., 489 F. Supp. 2d 1233 (D. Kan. 2007)
(denying defendants’ motion to dismiss); Lamond v. Pepsico, Inc., et al., Case No.
CIV 06-3043, 2007 WL 1695401 (D.N.J. June 8, 2007). These have not resulted
in any definitive rulings on the matter. Analogous claims, based on prisoners’
unwitting consumption of drinks sweetened with saccharine (a possible
carcinogen) have been rejected because no proof existed that the substance was
detrimental to human health, and no present injury had been alleged. Tripp v.

Carter, No. 99-C-3304, 1999 WL 966099, at *2-3 (N.D. Ill. Oct. 13, 1999)
(collecting cases).

In Plaintiff’s case, however, he alleges that there is

documentation of actual harm and risks of harm to humans from ingesting

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benzene, which may develop from the components in the prison juice products.
He claims to have suffered physical symptoms after consuming the juice, and
raises a claim for possible future harm due to long-term exposure. Furthermore,
he claims that for a lengthy period, he had no opportunity to avoid the risk by
choosing not to consume the products, because he had no knowledge of the risk.
At this early stage of the case, therefore, it would be inappropriate to conclude
that the ICI-produced juice products did not pose an objectively serious risk of
harm to Plaintiff.
The remaining question is whether any of the Defendants had the requisite
subjective knowledge of the risk to Plaintiff’s and other inmates’ health from these
products. Awareness of such a risk is necessary to support a claim for deliberate
indifference based on a Defendant’s failure to take any action to mitigate the risk.
Count 1 – John/Jane Doe ICI Superintendents
According to Plaintiff, the ICI superintendents have known about the danger
from the possible formation of benzene when sodium benzoate and ascorbic acid
are combined in products, since approximately 1998. He claims that despite this
knowledge, they did not take remedial steps to ensure their products were not
dangerous. Instead, they continued to manufacture and distribute these products
to prisoners for many years. These allegations support an Eighth Amendment
claim at this stage of the case.
Because Plaintiff has identified two distinct sub-groups of John/Jane Doe
Defendants, for clarity, the John/Jane Doe ICI Superintendents shall be

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designated as Unknown Party #1 (John/Jane Doe ICI Superintendents) 1 as this
case goes forward.
Count 1 survives review under § 1915A, and shall proceed against
Unknown Party #1 (John/Jane Doe ICI Superintendents).

The current ICI

Superintendent shall be added as a party and service shall be directed to him/her
under that title. However, Plaintiff must identify any former ICI Superintendents
by name before the Complaint may be served on them.
Count 2 – IDOC Directors
Plaintiff seeks to hold current IDOC Director Baldwin, as well as former
IDOC Directors Godinez, Taylor, and Randle, liable for deliberate indifference to a
known risk of harm from benzene in the juice drinks served in IDOC prisons. He
claims that Baldwin, Godinez, Taylor, and Randle knew about the risks posed by
the possibility of benzene in the drinks, but did nothing to mitigate the risks.
Plaintiff has sufficiently alleged that Baldwin, Godinez, Taylor, and Randle
knew about the potential danger to inmates from consuming juice containing
chemicals that could produce benzene, yet took no action. At this early juncture,
he has stated a claim against these Defendants and may proceed with Count 2
against them.
Count 3 – Warden Mueller and Dietary Managers
Plaintiff claims that Warden Mueller and the John/Jane Doe Dietary

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To facilitate the orderly progress of this action going forward, the Clerk shall be directed to
rename the Unknown Party Defendants as follows: Unknown Party #1 (John/Jane Doe ICI
superintendents) and Unknown Party #2 (John/Jane Doe dietary managers). See FED. R. CIV. P.
21 (“the court may at any time, on just terms, add or drop a party”).

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Managers knew about the formation of benzene from ingredients found in the
prison drink products since 1998, and were also informed of concerns about
benzene in drink products when IDOC union employees raised the issue in 2008.
In fact, they stopped serving the juice products at some point, but then began to
use them again.

Mueller allegedly reviewed and concurred with the denial of

Plaintiff’s grievance. Despite their alleged knowledge of the hazards of benzene,
these Defendants did nothing to mitigate the risks to inmates from consuming the
juice.
Giving liberal construction to the Complaint, Plaintiff has met the basic
pleading requirements to state a claim against Mueller and the John/Jane Doe
Dietary Managers at this early stage. Again, as noted above, in order to clarify the
claims against each class of Unknown Defendants going forward, the Court shall
designate the Doe party as Unknown Party #2 (John/Jane Doe Dietary Managers).

See Fed. R. Civ. P. 21.
At this time, Count 3 survives review under § 1915A.
Dismissal of Count 4 – Grievance Officials
Lastly, Plaintiff sues Walker (Grievance Officer) and Thull (ARB), both of
whom reviewed and denied Plaintiff’s grievance over the alleged dangers of the
juices being served. However, the Complaint does not allege that Walker or Thull
had any knowledge of the hazards of consuming benzene, or that either official
had any involvement in the decisions regarding what beverages would be served in
Centralia or other prisons. These Defendants’ only role was to review and deny

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Plaintiff’s grievance.
A defendant’s action or inaction in handling a plaintiff’s grievances does not
support an independent constitutional claim.

“[A] state’s inmate grievance

procedures do not give rise to a liberty interest protected by the Due Process
Clause.”

Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996).

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).

The Seventh Circuit instructs that 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). See also Grieveson v. Anderson, 538 F.3d 763, 772 n.3 (7th Cir.
2008); George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007); Antonelli, 81 F.3d at
1430. In order to be held individually liable, “a defendant must be ‘personally
responsible for the deprivation of a constitutional right.’” Sanville v. McCaughtry,
266 F.3d 724, 740 (7th Cir. 2001) (quoting Chavez v. Ill. State Police, 251 F.3d
612, 651 (7th Cir. 2001)).
In this case, Plaintiff merely alleges that Walker and Thull rejected or
denied his grievances – grievances that he filed to complain about the misconduct
of other prison officials. This does not constitute personal involvement sufficient
to sustain a deliberate indifference claim. Therefore, Count 4 against Walker and
Thull shall be dismissed with prejudice.

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Identification of Unknown Defendants
Plaintiff shall be allowed to proceed with Count 1 against Defendants
Unknown Party #1 (John/Jane Doe ICI Superintendents).

In this case, the

current ICI Superintendent may be served by directing service to him/her under
his/her official title, and the Clerk shall be directed to add the current ICI
Superintendent as a party. See FED. R. CIV. P. 21. However, any previous ICI
Superintendents must be identified with particularity before service of the
Complaint can be made on them.
Count 3 also survives dismissal, but the Complaint does not provide
sufficient information to determine which of the Unknown Party #2 (John/Jane
Doe Dietary Managers) Defendants may be implicated in this claim. Accordingly,
no service shall be ordered for this class of John/Jane Doe Defendants until
Plaintiff identifies the individual Defendant(s) by name.
Where a prisoner’s Complaint states specific allegations describing conduct
of individual prison staff members sufficient to raise a constitutional claim, but
the names of those defendants are not known, the prisoner should have the
opportunity to engage in limited discovery to ascertain the identity of those
defendants. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir.
2009). In this case, IDOC Director Baldwin is already named as a Defendant, and
he shall be responsible for responding to discovery aimed at identifying these
unknown defendants.
Superintendent.

As well, discovery may be directed to the current ICI

Guidelines for discovery will be set by the United States

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Magistrate Judge. Once the names of Defendants Unknown Party #1 (John/Jane
Doe ICI Superintendents) and Unknown Party #2 (John/Jane Doe Dietary
Managers) are discovered, Plaintiff shall file a motion to substitute each newly
identified defendant in place of the generic designations in the case caption and
throughout the Complaint.
Pending Motion
Plaintiff’s motion to consolidate his case with the pending action Trainor v.

Baldwin, Case No. 17-cv-369-DRH-DGW (Doc. 3) is REFERRED to the United
States Magistrate Judge for further consideration.
Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (Doc. 8) will be
addressed in a separate order of the Court.
Disposition
The Clerk is DIRECTED to designate the Unknown Party Defendants as
follows:

UNKNOWN PARTY #1 (John/Jane Doe ICI Superintendents) and

UNKNOWN PARTY #2 (John/Jane Doe Dietary Managers).

In addition, the

Clerk is DIRECTED to add as a Defendant the SUPERINTENDENT of the
ILLINOIS CORRECTIONAL INDUSTRIES.
IT IS HEREBY ORDERED that COUNT 1 shall PROCEED against
JOHN/JANE DOE ICI SUPERINTENDENTS; COUNT 2 shall PROCEED against
BALDWIN, GODINEZ, TAYLOR, and RANDLE; and COUNT 3 shall PROCEED
against MUELLER and JOHN/JANE DOE DIETARY MANAGERS.
IT IS FURTHER ORDERED that COUNT 4 is DISMISSED with prejudice
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for failure to state a claim upon which relief may be granted and Defendants
WALKER and THULL are DISMISSED from this action without prejudice.
The Clerk of Court shall prepare for Defendants BALDWIN, GODINEZ,
RANDLE, TAYLOR, MUELLER, and the SUPERINTENDENT of the ILLINOIS
CORRECTIONAL INDUSTRIES: (1) Form 5 (Notice of a Lawsuit and Request to
Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons).
The Clerk is DIRECTED to mail these forms, a copy of the Complaint, and this
Memorandum and Order to each Defendant’s place of employment as identified
by Plaintiff.

If a Defendant fails to sign and return the Waiver of Service of

Summons (Form 6) to the Clerk within 30 days from the date the forms were
sent, the Clerk shall take appropriate steps to effect formal service on that
Defendant, and the Court will require that Defendant to pay the full costs of
formal service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work
address provided by Plaintiff, the employer shall furnish the Clerk with the
Defendant’s current work address, or, if 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.
Service shall not be made on UNKNOWN PARTY #1 (John/Jane Doe ICI
Superintendents) and UNKNOWN PARTY #2 (John/Jane Doe Dietary

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Managers) until such time as Plaintiff has identified them by name in a properly
filed motion for substitution of parties.

Plaintiff is ADVISED that it is his

responsibility to provide the Court with the names and service addresses for these
individuals.
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,
including a plan for discovery aimed at identifying the unknown defendants with
particularity.

Further, this entire matter shall be REFERRED to the U.S.

Magistrate Judge Wilkerson for disposition, pursuant to Local Rule 72.2(b)(2)
and 28 U.S.C. § 636(c), if all parties consent to such a referral.
If judgment is rendered against Plaintiff, and the judgment includes the
payment of costs under § 1915, Plaintiff will be required to pay the full amount of
the costs, whether or not his application to proceed in forma pauperis has been
granted. See 28 U.S.C. § 1915(f)(2)(A).
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

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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.

Judge Herndon
2018.06.07 10:50:15
-05'00'
United States District Judge

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