Holleman v. Buncich et al
Filing
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OPINION AND ORDER re 1 Pro Se Complaint GRANTING the plaintiff leave to proceed against John Buncich and Dr. William Forgey for monetary damages in their individual capacities for failing to provide him with his medically prescribed diet and adequate bedding, clothing, heat, and sanitation in violation of the Eighth Amendment as set forth in order. The Court DISMISSES any and all other claims contained in the complaint and DISMISSES Jane Doe #1, Jane Doe #2, Officer Mattingley, and Sergeant John Doe#1 as defendants; DIRECTS the United States Marshals Service to effect service of process on John Buncich and Dr. William Forgey pursuant to 28 U.S.C. § 1915(d). Signed by Chief Judge Philip P Simon on 4/15/14. cc: Holleman(mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROBERT L. HOLLEMAN,
Plaintiff,
vs.
JOHN BUNCICH, et al.,
Defendants.
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CAUSE NO. 2:14-CV-019 PS
OPINION AND ORDER
Robert L. Holleman, a pro se prisoner, filed a complaint under 42 U.S.C. § 1983. (DE 1.)
Pursuant to 28 U.S.C. § 1915A, I must review the complaint and dismiss it if the action is
frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(a), (b). To survive
dismissal, a complaint must contain enough to state a claim for relief that is plausible on its face
and raise the right to relief above the speculative level. Bissessur v. Indiana Univ. Bd. of Trs.,
581 F.3d 599, 602-03 (7th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 602 (internal quotation marks omitted). Thus, “a plaintiff must
do better than putting a few words on paper that, in the hands of an imaginative reader, might
suggest that something has happened to her that might be redressed by the law.” Swanson v.
Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original). Nevertheless, I must
bear in mind that “[a] document filed pro se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation and quotation
marks omitted).
According to the complaint, Holleman is an inmate within the Indiana Department of
Correction (“IDOC”). In 2007, he was diagnosed with celiac’s disease by a doctor at Wabash
Valley Correctional Facility (“Wabash Valley”). Because celiac’s patients cannot eat foods
containing gluten, he was placed on a no-gluten diet at Wabash Valley. In September 2013,
Holleman was temporarily housed at the Lake County Jail so he could attend a court hearing
pertaining to a state petition for post-conviction relief. Prior to his arrival, he sent a letter to John
Buncich, the Sheriff of Lake County, to alert him that he had specific dietary needs due to
celiac’s disease. He explained that he could not eat any wheat products, submitted a memo
related to the foods he could eat, and attached a copy of his current diet card.
On September 3, 2013, Holleman was taken to the jail. Shortly after his arrival, he was
served a tray for dinner consisting almost entirely of things he could not eat, including sausage,
bread, potatoes, and cookies. He explained his dietary restrictions to the officer delivering the
trays. Holleman claims the officer “got smart with [him]” (DE 1 at ¶ 7) and left the tray, but then
later returned with a different tray containing some type of rice casserole. Holleman explained
that he could not eat the rice casserole, either. Shortly thereafter, Holleman was taken to see a
nurse and he explained his dietary restrictions to her. Nevertheless, he claims that over the
course of the next three days, he was repeatedly served trays of food containing mostly items he
could not eat. As a result, he often went without meals or ate very little of what was provided.
Holleman claims that during this period he complained to a jail guard, Officer Mattingley
(first name unknown) about his meals, but the officer was rude to him and dismissive of his
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problem. He claims that on September 5, 2013, he told another officer escorting him to court
about the meal problem, and the officer told him he would “write out a complaint for him” (DE 1
at ¶ 21), but Holleman does not know whether he ever did. On the afternoon of September 6,
2013, Holleman was taken to see the jail doctor, Dr. William Forgey. After Holleman explained
his diagnosis, the doctor said that he understood Holleman’s dietary restrictions, and he agreed
that Holleman could not eat many of the foods regularly served by the jail, including the rice
casserole he had been given. The doctor told Holleman that he had spoken with his brother-inlaw earlier that day, who had called to express concern about Holleman’s dietary needs. The
doctor promised to provide Holleman with an appropriate diet.
That evening, however, Holleman was again given the rice casserole, which he claims he
could not eat. Two officers attempted to obtain some different food for Holleman from the jail
kitchen, but for unknown reasons they were unable to do so. Sometime after dinner, a mental
health worker visited Holleman and told him that Sheriff Buncich sent her because of the phone
call from Holleman’s brother-in-law earlier that day. Despite speaking with this individual and
filing a grievance about his diet the following day, on September 8, 2013, and September 9,
2013, he still received meals consisting mainly of foods he could not eat. On September 9, 2013,
Holleman left the jail and returned to the custody of the IDOC.
In addition to the problem with the food, Holleman claims that he was housed under
substandard conditions during his time at the jail. Specifically, he asserts that the jail was filthy,
excessively cold, smelled of feces, and was significantly overcrowded, requiring him to sleep on
a concrete slab on the floor for several nights, which aggravated a prior back injury. Based on
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these events, Holleman sues several individuals, including Dr. Forgey, Sheriff Buncich, and
various staff at the jail, asserting the denial of his Eighth Amendment rights.
In evaluating an Eighth Amendment claim, courts conduct both an objective and a
subjective inquiry. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective prong asks
whether the alleged deprivation is “sufficiently serious” so that “a prison official’s act results in
the denial of the minimal civilized measure of life’s necessities.” Id. (internal quotation marks
omitted). Although “the Constitution does not mandate comfortable prisons,” Rhodes v.
Chapman, 452 U.S. 337, 349 (1981), inmates are entitled to be provided with adequate food,
clothing, bedding, and sanitation. Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009); Gillis v.
Litscher, 468 F.3d 488, 493 (7th Cir. 2006); Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir.
1996). On the subjective prong, the prisoner must show the defendant acted with deliberate
indifference to his health or safety. Farmer, 511 U.S. at 834. As the Seventh Circuit has
explained:
[C]onduct is deliberately indifferent when the official has acted in an intentional or
criminally reckless manner, i.e., the defendant must have known that the plaintiff
was at serious risk of being harmed and decided not to do anything to prevent that
harm from occurring even though he could have easily done so.
Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (internal citations and quotation marks
omitted); see also Reed v. McBride, 178 F.3d 849, 855 (7th Cir. 1999) (where inmate
complained about severe deprivations but was ignored, he established a “prototypical case of
deliberate indifference”).
Inmates are also entitled to adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104
(1976). To establish liability, a prisoner must satisfy both an objective and subjective component
by showing: (1) his medical need was objectively serious; and (2) the defendant acted with
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deliberate indifference to that medical need. Farmer, 511 U.S. at 834. A medical need is
“serious” if it is “one that has been diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would perceive the need for a doctor’s attention.” Greeno v.
Daley, 414 F.3d 645, 653 (7th Cir. 2005). For a medical professional to be held liable for
deliberate indifference, he or she must make a decision that represents “such a substantial
departure from accepted professional judgment, practice, or standards, as to demonstrate that the
person responsible actually did not base the decision on such a judgment.” Jackson v. Kotter,
541 F.3d 688, 697 (7th Cir. 2008).
Here, Holleman asserts that he needed a special diet because of a medically diagnosed
condition. He claims that despite being made personally aware of his need for a special diet, both
Sheriff Buncich and Dr. Forgey failed to take adequate steps to ensure that his dietary needs
were met. As a result, he went without meals or had inadequate food for several days, causing
him to lose almost ten pounds during the six days he was at the jail. Giving him the inferences to
which he is entitled at this stage, he has alleged a plausible deliberate indifference claim against
these defendants.1
Holleman also seeks to sue “Jane Doe #1,” Sheriff Buncich’s secretary, whom he claims
falsely assured his brother-in-law that his dietary needs were being met. Holleman has not stated
a constitutional claim against this defendant. “Section 1983 does not establish a system of
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I note that Holleman misidentifies Sheriff Buncich as the jail warden throughout his
complaint. It is not entirely clear whether Holleman contacted Buncich by name with his concerns
about the food, or whether he contacted the jail warden. In light of his pro se status, and giving his
complaint liberal construction, he has alleged enough to proceed further against Sheriff Buncich.
If this defendant was sued in error, however, Holleman is free to seek leave to file an amended
complaint that names the jail warden in place of Sheriff Buncich, or adds the warden as a defendant
if both individuals were involved in these events.
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vicarious responsibility.” Burks v. Raemisch, 555 F.3d 592, 593 (7th Cir. 2009). The secretary
was responsible for answering the phone; she cannot be held responsible for the failure of other
jail staff to provide Holleman with adequate meals. As the Seventh Circuit has explained:
Bureaucracies divide tasks; no prisoner is entitled to insist that one employee do
another’s job. The division of labor is important not only to bureaucratic
organization but also to efficient performance of tasks; people who stay within their
roles can get more work done, more effectively, and cannot be hit with damages
under §1983 for not being ombudsmen. [The] view that everyone who knows about
a prisoner’s problem must pay damages implies that [a prisoner] could write letters
to the Governor of Wisconsin and 999 other public officials, demand that every one
of those 1,000 officials drop everything he or she is doing in order to investigate a
single prisoner’s claims, and then collect damages from all 1,000 recipients if the
letter-writing campaign does not lead to better medical care. That can’t be right.
Id. at 595. Here, the secretary did not cause the problem with the meals, nor is there anything to
indicate she stood in the way of its resolution. “The most one can say is that [she] did nothing,
when she might have gone beyond the requirements of her job and tried to help him.” Id. at 596.
This does not state a claim under § 1983, since “public employees are responsible for their own
misdeeds but not for anyone else’s.” Id. Accordingly, Jane Doe #1 will be dismissed as a
defendant.
Holleman also seeks to sue “Jane Doe #2,” whom he identifies as the food service
director at the jail. He does not mention this individual in the narrative section of the complaint,
and there is no basis to plausibly infer that she had direct personal involvement in these events. It
appears Holleman is trying to hold her liable because she is responsible for overseeing
operations in the kitchen, but there is no general supervisory liability under Section 1983. As the
Seventh Circuit has explained, a supervisor must be personally involved in the misconduct of his
or her subordinates in order to be held liable for the violation of a plaintiff’s constitutional rights.
Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001). Mere negligence in failing to
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discover and prevent a subordinate’s misconduct is not enough. Id. “The supervisors must know
about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they
might see. They must in other words act either knowingly or with deliberate, reckless
indifference.” Id. Here, Holleman does not allege, nor is there a basis in the complaint to
plausibly infer, that Jane Doe #2 had direct personal knowledge of his dietary restrictions and
disregarded them, or otherwise turned a blind eye to his dietary needs. Instead, the only
allegation pertaining to her is that she was responsible for the oversight of the jail food service.
This does not state a plausible claim for relief for the reasons stated, and she will be dismissed as
a defendant.
Holleman also seeks to sue two members of the correctional staff, Officer Mattingley, the
officer who was rude to him when he spoke with him over the intercom about the problem with
his meals, and an unknown sergeant who supervised the correctional staff on Holleman’s
cellblock. As discussed above, it is apparent from the complaint that Holleman was seen by a
nurse and a doctor during this period, and as a non-medical staff member, Officer Mattingley
was entitled to defer to medical staff regarding what type of diet Holleman needed. See Burks,
555 F.3d at 595. His rude comments and insensitivity might be considered unprofessional, but
they do not give rise to a constitutional claim. DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.
2000) (observing that verbal harassment or rude comments by prison staff do not constitute cruel
and unusual punishment); Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir. 1987) (observing that
conduct does not violate the Constitution simply because it is unprofessional). As to the
unknown sergeant, Holleman appears to be trying to hold him responsible because he supervised
correctional staff on the cellblock. As explained above, however, the sergeant cannot be held
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vicariously liable for the actions of his subordinates. Chavez, 251 F.3d at 651. Furthermore, as
non-medical staff, he too would be entitled to defer to medical staff regarding the diet Holleman
should be served. See Burks, 555 F.3d at 595. Accordingly, these two individuals will be
dismissed as defendants.
As noted above, Holleman also claims that he was denied proper bedding, heat, clothing,
and sanitation during his six days at the jail. It appears he is trying to hold Sheriff Buncich
responsible in connection with this claim. For the reasons discussed above, Sheriff Buncich
cannot be held liable solely because he is the official responsible for overseeing operations at the
jail. Chavez, 251 F.3d at 651. Giving the complaint liberal construction, however, it can be read
to allege that Holleman complained to Sheriff Buncich about these issues and/or that the
problems were so significant they would have been obvious to him when he was working at the
jail. Vinning-El v. Long, 482 F.3d 923, 924-25 (7th Cir. 2007) (observing that deliberate
indifference can be established through circumstantial evidence, by showing that the conditions
would have been obvious to prison personnel “working in the vicinity”). He will be permitted to
proceed on a conditions of confinement claim against Sheriff Buncich.
For these reasons, the court:
(1) GRANTS the plaintiff leave to proceed against John Buncich and Dr. William
Forgey for monetary damages in their individual capacities for failing to provide him with his
medically prescribed diet in violation of the Eighth Amendment;
(2) GRANTS the plaintiff leave to proceed against John Buncich for monetary damages
in his individual capacity for failing to provide him with adequate bedding, clothing, heat, and
sanitation in violation of the Eighth Amendment;
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(3) DISMISSES Jane Doe #1, Jane Doe #2, Officer Mattingley, and Sergeant John Doe
#1 as defendants;
(4) DISMISSES any and all other claims contained in the complaint;
(5) DIRECTS the United States Marshals Service to effect service of process on John
Buncich and Dr. William Forgey pursuant to 28 U.S.C. § 1915(d); and
(6) ORDERS John Buncich and Dr. William Forgey to respond, as provided for in the
FEDERAL RULES OF CIVIL PROCEDURE, only to the claims for which the plaintiff has been
granted leave to proceed in this screening order.
SO ORDERED.
ENTERED: April 15, 2014.
s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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