KADAMOVAS et al VS LOCKETT
Filing
54
ENTRY - granting in part and denying in part 38 Motion for Summary Judgment. Kadamovas has not identified a genuine issue of material fact as to his claims in Counts One or Two of this case, and the Defendants are entitled to judgment as a matt er of law on those counts. As to Count Three, material facts are in dispute regarding whether Defendant Heiser was deliberately indifferent to Kadamovas' serious medical needs in November 2010. Accordingly, the motion for summary judgment (Dk t. No. 38) is DENIED as to Kadamovas' claim against Defendant Heiser with regard to his request for medical care in November 2010 and GRANTED in all other respects. (See Entry.) Copy to plaintiff via US Mail. Signed by Judge William T. Lawrence on 9/30/2013. (RSF)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
JURIJUS KADAMOVAS,
Plaintiff,
vs.
JO CHARLES LOCKETT, et al.,
Defendants.
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Cause No. 2:11-cv-15-WTL-DKL
ENTRY ON MOTION FOR SUMMARY JUDGMENT
Plaintiff Jurijus Kadamovas is an inmate currently incarcerated at the Federal
Correctional Complex in Terre Haute, Indiana (“FCC Terre Haute”). On January 18, 2011,
Kadamovas filed a civil rights complaint, pursuant to Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971), alleging that Defendants J. Charles Lockett, T. K. Cozza-Rhodes,
Craig Coil, Michael Stephens, Anthony Serrato,1 and Tracy Heiser (collectively “the
Defendants”) 2 violated his First and Eighth Amendment rights and the Religious Freedom
Restoration Act, 42 U.S.C. § 2000bb-1(a) (“RFRA”). Kadamovas asserts three claims. In Count
One, he alleges his free exercise rights under the First Amendment and RFRA were violated
because the food served to him while on the prison’s religious diet (“Common Fare diet”) was
inadequately cooked or prepared or spoiled or nutritionally inadequate. Dkt. No. 1, pp. 7-17. In
1
Kadamovas misspelled the names of Defendants Serrato and Stephens in his Complaint.
The Clerk is directed to correct the spelling on the docket. The Clerk is further directed to
add the first names of Defendants Serrato and Heiser to the docket and to correct the last
name of Defendant Cozza-Rhodes.
2
Kadamovas also asserts claims against Richard Myers. Myers has not been served with
the summons and Complaint in this case and has not appeared. Accordingly, Kadamovas’ claims
against Myers are not addressed in this Entry, and the term “Defendants” as used in this Entry
does not include Myers.
Count Two, Kadamovas claims that his Eighth Amendment rights were violated by the
Defendants because the inadequately cooked or prepared food caused him to become sick. Dkt.
No. 1, pp. 18-20. Lastly, Count Three alleges that the Defendants denied Kadamovas medical
treatment in violation of the Eighth Amendment. Dkt. No. 1, pp. 20-22. The Defendants now
seek resolution of this action through summary judgment.
For the reasons explained below, the Defendants’ motion for summary judgment (Dkt.
No. 38) is granted in part and denied in part.
I. STANDARD
A motion for summary judgment asks that the Court find that a trial is unnecessary
because the uncontroverted admissible evidence of record dictates a verdict in the moving
party’s favor as a matter of law. See Fed. R. Civ. Pro. 56. To survive a motion for summary
judgment, the non-moving party must set forth specific, admissible evidence showing that there
is a material issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Whether a party asserts that a fact is undisputed or genuinely disputed, the party must
support the asserted fact by citing to particular parts of the record, including depositions,
documents, or affidavits. Fed. R. Civ. Pro. 56(c)(1)(A). A party can also support a fact by
showing that the materials cited do not establish the absence or presence of a genuine dispute, or
that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. Pro.
56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant is competent to testify on matters
stated. Fed. R. Civ. Pro. 56(c)(4). Failure to properly support a fact in opposition to a movant’s
factual assertion will result in the movant’s fact being considered undisputed. Fed. R. Civ. Pro.
56(e).
2
The Court need only consider the cited materials, Fed. R. Civ. Pro. 56(c)(3), and the
Seventh Circuit Court of Appeals has “repeatedly assured the district courts that they are not
required to scour every inch of the record for evidence that is potentially relevant to the summary
judgment motion before them.” Johnson v. Cambridge Indus., 325 F.3d 892, 898 (7th Cir. 2003).
Furthermore, reliance on the pleadings or conclusory statements backed by inadmissible
evidence is insufficient to create an issue of material fact on summary judgment. Id. at 901.
The key inquiry, then, is whether admissible evidence exists to support a plaintiff’s
claims, not the weight or credibility of that evidence, both of which are assessments reserved to
the trier of fact. See Schacht v. Wis. Dep’t of Corrections, 175 F.3d 497, 504 (7th Cir. 1999).
When evaluating this inquiry, the Court must give the non-moving party the benefit of all
reasonable inferences from the evidence submitted and resolve “any doubt as to the existence of
a genuine issue for trial . . . against the moving party.” Celotex, 477 U.S. at 330. In addition,
although as a pro se litigant Kadamovas’ filings are to be liberally construed, his “pro se status
doesn’t alleviate his burden on summary judgment.” Arnett v. Webster, 658 F.3d 742, 760 (7th
Cir. 2011).
II. PRELIMINARY EVIDENTIARY MATTERS
The Defendants take issue with much of the factual allegations made by Kadamovas,
arguing that Kadamovas’ declarations, verified complaint, and exhibits contain arguments,
conclusions, speculation, and inadmissible hearsay, none of which are admissible to refute a
summary judgment motion. See Fed. R. Evid. 801 and 802; Stinnett v. Iron Works Gym/
Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002) (evidence relied upon in defending
a motion for summary judgment must be competent evidence of a type otherwise admissible at
3
trial); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994) (non-moving party must
demonstrate that there is admissible evidence that will support its position).
The Defendants are correct. Portions of Kadamovas’ personal declaration (Dkt. No. 50-2,
pp. 2-10) are not admissible because they contain inadmissible hearsay. The inadmissible
hearsay is found at docket number 50-2, ¶¶ 5, 6, 7, 9, 10, 13-17. Additionally, paragraphs 12 and
17 of Kadamovas’ declaration are inadmissible because those paragraphs contain legal
assertions, arguments, conclusions, or conjecture not otherwise supported by admissible
evidence. See Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990) (mere speculation or
conjecture, even if presented in affidavit form, would not convert the statements into competent
evidence); McDonald v. Village of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004) (“Inferences
that are supported by only speculation or conjecture will not defeat a summary judgment
motion.”). Kadamovas’ verified Complaint3 also is filled with legal conclusions, legal
arguments, and alleged facts about which he could not have personal knowledge. None of this
inadmissible evidence has been considered by the Court in making this ruling.
The Defendants also argue that the inclusion of documents and exhibits referencing
inmate Wesley Purkey and any problems that Purkey may have experienced with his conditions
of confinement are irrelevant to Kadamovas’ claims. The Defendants are correct that Purkey’s
partial grievances do not address Kadamovas’ claims, other than to mirror the same general
allegations with facts that apply only to Purkey. In addition, declarations authored by inmates
Purkey, Caro, Sirristerra, and Barrett contain various out-of-court statements allegedly made by
3
Because Kadamovas signed his Complaint under penalty of perjury, the Court may treat
that pleading as an affidavit and consider it as evidence. “By declaring under penalty of perjury
that the [Complaint] was true . . . he converted the [Complaint], or rather those factual assertions
in the [Complaint] that complied with the requirements for affidavits specified in the rule . . . into
an affidavit.” Dale v. Lappin, 376 F.3d 652, 655 (7th Cir. 2004) (quoting Ford, 90 F.3d at 247).
4
third parties intended to prove the truth of the matter asserted. 4 As stated above, testimony based
on inadmissible hearsay, speculation, and conjecture was not considered in ruling on this motion
for summary judgment.
III. BACKGROUND
The properly supported facts of record, viewed in the light most favorable to Kadamovas,
the non-moving party, are as follow.
A. The Bureau of Prison’s Religious Diet Program
Pursuant to Program Statement P5360.09, Religious Beliefs and Practices, the Bureau of
Prisons (“Bureau”) provides inmates requesting a religious diet a reasonable opportunity to
observe their religious dietary practice through a religious diet menu. The Bureau’s religious diet
program is identified as the “Common Fare Menu.” Religious diet, Common Fare Menu and
Certified Food Menu are all terms which are used interchangeably to identify the religious diet
menu provided by the Bureau. If an inmate wishes to participate in the religious diet program, he
must simply make that request to the Chaplain in writing. The inmate is then required to
complete a religious diet interview articulating his religious motivation for participation in the
religious diet program. At any given time there are between 100-200 inmates on the religious
diet at FCC Terre Haute. The food preparation for each of those inmates should be the same.
Participation in the religious diet program is voluntary on the part of the inmates, and
Kadamovas has voluntarily entered and left the program several times during his incarceration.
On March 10, 2008, Kadamovas requested to be placed on the Common Fare Menu. Since
August 2009, Kadamovas’ stated religious preference has been Orthodox Christian. The
Common Fare Menu is approved to comport with the dietary requirements of the Orthodox
4
These inmates’ declarations are appropriate, however, to dispute any assertion that
Kadamovas was the only inmate experiencing problems on the religious diet.
5
Christian Church. On October 13, 2011, Kadamovas requested that he be removed from the
Common Fare Menu; he has not asked to be returned to the religious diet program since that
date.
B. The Bureau’s Common Fare Menu
The Common Fare Menu is a uniform menu followed on a nationwide basis within the
Bureau and must be followed by each institution. In arriving at religious menus, the Bureau’s
Central Office Food Services and Religious Services staff work closely with outside religious
entities to ensure the meals provided meet religious dietary standards and also provide sufficient
nutrition for inmates. The Common Fare Menu diet also meets the U.S. Department of
Agriculture’s nutritional standards.
Substitutions of food items to properly complete the daily menu can be, and are, made by
food service staff. There are a variety of reasons that Food Services might run short of a
particular menu item and food substitutions may be required, including spoilage, inoperative
equipment, too few of a particular food item delivered, natural disaster disrupting delivery,
unexpected increase in cost, etc. When substitutions are required to be made, managers are made
aware that an unplanned change is required to feed the inmate population. Policy allows these
decisions to be made at the time that food is being handled, inspected, prepared, and served.
C. Food Distribution at FCC Terre Haute
Kadamovas is housed in the Special Confinement Unit (“SCU”) where meals are served
in prepared trays. Trays are loaded with food items consistent with the suggested menu for
Common Fare meals to be served to assigned inmates in locked units who are designated
Common Fare status. These trays are processed in Food Services and brought to the SCU
housing unit in carts. The trays are removed by custodial staff in the housing unit and should be
6
delivered randomly to the inmates designated on the Common Fare program. However, on
occasion, and specifically on September 23, 2011, Kadamovas received a tray with his name
written on it.
If the Common Fare meal trays were to arrive from Food Service to the housing unit and
a food item was missed or delivered in error, unit officers have the ability to contact Food
Service staff on the radio and remedy the problem.
D. The Role of the Defendants at FCC Terre Haute
1. Defendant Lockett
Charles Lockett was the Complex Warden at the FCC Terre Haute from February 2011
until August 2012. As Warden at FCC Terre Haute, Lockett was responsible for administrative
oversight over the everyday operation of the prison. He exercised administrative oversight and
supervision of the staff and programs and was advised of security, administrative, budgetary, or
personnel related issues at the prison.5
Lockett did not personally participate in or oversee the ordering or receipt of daily food
supplies, preparation of menu items, or food preparation in the Food Services Department. He
was not personally involved in the daily inspection of food items or the preparation of any food
for inmate consumption. Lockett was not personally involved in the preparation of any inmate
meal trays. The only knowledge Lockett had about what food was on the Common Fare Menu,
or how it was to be prepared, was obtained because of his general supervisory role and because
5
The parties dispute whether Lockett ever screamed at the SCU inmates, or threatened
Kadamovas or other inmates with a loss of additional rights or privileges because of their making
complaints about prison conditions. Specifically, Kadamovas claims that Lockett threatened him
and other inmates with disciplinary action in retaliation for presenting complaints to him and for
engaging in a hunger strike. This dispute is not material to the claims in this action, but rather is
the subject of another case. See Kadamovas v. Lockett, et al., 2:11-cv-258-WTL-WGH
(complaint alleging constitutional violations based on hunger strikes).
7
he had to respond to Kadamovas’ administrative remedies or complaints. Lockett had
Kadamovas’ complaints investigated (by others) and provided the required response. Lockett, as
a result of Kadamovas’ complaints, had regular checks put into place to ensure quality by food
service staff, and had the Unit Manager for the SCU conduct numerous random spot checks of
the food served in the SCU over a period of several weeks. Lockett had no personal knowledge
of any spoiled or outdated food items being served to the SCU inmates.
2. Defendant Cozza-Rhodes
Assistant Warden Cozza-Rhodes was responsible for administrative oversight over the
everyday operation of the Food Services and Religious Services at FCC Terre Haute. CozzaRhodes did not personally oversee the ordering or receipt of daily food supplies, menu selection,
or food preparation. Cozza-Rhodes did not have any role in the determination of which specific
food items were placed upon the National Common Fare Menu, and she did not inspect any daily
food items or prepare any food for inmate consumption.
Cozza-Rhodes testified that, consistent with Bureau Policy and as part of her general
supervisory duties in Food Service, she was advised whenever there was a food substitution for
the religious diet menu. Prior to September 13, 2011 (when Policy Statement 4700.06 became
effective), BOP Policy Statement 4700.05 provided:
Changes to the nationally approved certified foods menus may not be made at the
institutional level, except when seasonal unavailability of specific fresh produce
items dictates that temporary substitutions be made. All substitutions will be
approved by the appropriate Associate Warden. Cook Supervisors will notify
supervisory staff when unscheduled changes to the menu are necessary.
Cozza-Rhodes told Kadamovas that she never approved any substitutions.
8
The parties dispute whether Cozza-Rhodes told Kadamovas, or any other inmate, that
there were food shortages at FCC Terre Haute due to budget constraints. There were no food
shortages at FCC Terre Haute because of budget constraints during the relevant time period.
3. Defendant Serrato
Anthony Serrato has been the Food Service Administrator at FCC Terre Haute since
November 2011. Serrato, as Food Service Administrator, generally oversees the everyday
operation of the Food Service department and the staff. Serrato does not personally prepare the
food for inmates, or supervise that preparation, which is managed by a cook supervisor whom he
generally supervises. Serrato does not determine which specific food items are placed on the
National Common Fare Menu, as it is maintained at the national level and is analyzed by a
registered dietitian annually. “Planned” changes to the National Common Fare Menu can only be
made at the Central Office level.
The pre-packaged certified processed foods served to inmates are not prepared by
Serrato, but are prepared by staff under the supervision of a Staff Foreman according to the
specific preparation instructions provided by the manufacturer.
Serrato is not personally involved in the final distribution of food trays to inmates. Food
trays are prepared by cooks supervised by a Food Service Foreman, and the trays are placed on
food carts for delivery to housing units. Serrato had no personal knowledge of any food shortage
or failure to deliver a particular food item to Kadamovas on any given date. Serrato was not
personally or directly involved in the delivery or failure to deliver any particular food item to
Kadamovas. The loading of a particular food tray and the delivery of a food tray to an inmate are
not functions that Serrato performs.
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4. Defendant Coil
Craig Coil was the Food Services Administrator at FCC Terre Haute from 2007 to 2011.
As Food Services Administrator, Coil’s responsibilities were to oversee operations of the Food
Service departments throughout FCC Terre Haute. Day-to-day supervision of food preparation
was accomplished under Coil’s general supervision by foremen supervising food preparers and
cooks. Coil was not personally involved in the preparation of the inmates’ food or the placement
of food items on a particular inmate’s tray.
The decisions Coil was required to make as Food Services Administrator at FCC Terre
Haute involved the necessity to substitute food items in the daily menu on numerous occasions,
and when he was required to make those decisions, he made them according to Bureau policy.
5. Defendant Stephens
Michael Stephens was the Unit Manager in the SCU at FCC Terre Haute from August
2010 to 2012. As the Unit Manager for the SCU, Stephens was responsible for the management
of the unit team and the overall running of the SCU unit. Stephens did not have any direct or
personal responsibility for the preparation of the food served to the inmates in the SCU. Stephens
did not personally prepare, inspect, cook, handle, or deliver the daily meals to inmates in the
SCU. As the Unit Manager, Stephens would make daily rounds when in the unit as well as
participate in weekly executive staff rounds.
Kadamovas complained to Stephens on a few occasions in 2011 about his religious diet.
Based on his complaints, and in an effort to resolve his complaints, Stephens conducted random
spot checks of the food served in the SCU over a period of several weeks. The spot checks that
Stephens conducted involved him randomly pulling trays from the food cart and examining the
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food.6 During these inspections and random spot checks, Stephens never observed any spoiled or
outdated food items being served to the inmates in the SCU.
6. Defendant Heiser
Tracy Heiser is a Registered Nurse who has been employed at FCC Terre Haute since
2006. Medical personnel are in the SCU multiple times daily for a variety of reasons. Inmates
should be allowed to see a doctor when needed, and medicines are distributed at least three times
a day. All medical staff, not just nurses, are required to respond to sick call requests.
Heiser was on maternity leave from July 2010 to September 2010, and therefore was not
on duty at FCC Terre Haute during August 2010. Heiser refused to assist Kadamovas with a sick
call request to allow him treatment for food poisoning in November of 2010.
IV. DISCUSSION
A. Right to Free Exercise of Religion
In Count One of his Complaint, Kadamovas claims that Defendants Lockett, CozzaRhodes, Stephens, Coil, and Serrato violated his constitutional right to the free exercise of his
religion under the First Amendment and as set forth in RFRA.
The Free Exercise Clause of the First Amendment prohibits the government from
imposing a “substantial burden” on a “central religious belief or practice.” Kaufman v. Pugh, ___
F.3d ___, 2013 WL 4256968, *2 (7th Cir., Aug. 16, 2013). But the Free Exercise Clause “does
not prohibit governments from burdening religious practices through generally applicable laws.”
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424 (2006) (citing
6
Kadamovas asserts without citation to admissible evidence that Common Fare Meals are
not served in trays as regular meals are. Instead, he alleges that they are served in pre-sealed
containers called “entrees.” PS 4700.05, Chapter 4 states that, ordinarily, certified food
component meals will be served with disposable trays. In addition, Kadamovas states in his
declaration (see ¶ 17) that his food was served on a Styrofoam tray.
11
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990)). Under the
Free Exercise Clause, a regulation that impinges on an inmate’s constitutional rights, such as one
imposing a “substantial burden” on free exercise, may be justified if it is “reasonably related to
legitimate penological interests.” O’Lone v. Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner
v. Safley, 482 U.S. 78, 89 (1987)). Given the limitations of the First Amendment as set forth by
the Supreme Court in Smith, Congress enacted RFRA. Under RFRA,7 the federal government
may not, as a statutory matter, substantially burden a person’s exercise of religion “even if the
burden results from a rule of general applicability” unless the government demonstrates that the
burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb–1(a)–(b); see
Grote v. Sebelius, 708 F.3d 850, 853 (7th Cir. 2013).
Claims under both the First Amendment and RFRA are evaluated under the substantial
burden test, which requires the plaintiff to show that the defendants substantially burdened his
free exercise rights. See Patel v. Bureau of Prisons, 515 F. 3d 807, 814 (8th Cir. 2008) (“[T]he
same definition of ‘substantial burden’ applies under the Free Exercise Clause, RFRA, and
RLUIPA.”). “[A] substantial burden on the free exercise of religion . . . is one that forces
adherents of a religion to refrain from religiously motivated conduct, inhibits or constrains
conduct or expression that manifests a central tenet of a person’s religious beliefs, or compels
conduct or expression that is contrary to those beliefs.” Koger v. Bryan, 523 F.3d 789, 798 (7th
Cir. 2008) (internal quotation and citation omitted); see also Thomas v. Review Bd. of Ind.
Employment Sec. Div., 450 U.S. 707, 718 (1981). As explained above, once it is determined that
7
The Seventh Circuit has held that RFRA entitles a prisoner to sue prison officials in their
individual capacities. See Nelson v. Miller, 570 F.3d 868, 886 (7th Cir. 2009).
12
government action imposes a substantial burden on a prisoner, the review of that burden under
the Free Exercise Clause differs from RFRA. See Patel, 515 F.3d at 813.
If Kadamovas is to survive summary judgment on his claims under either the Free
Exercise Clause or RFRA, he must have evidence that his sincerely held religious beliefs were
burdened by the Defendants’ conduct. See Vinning-El v. Evans, 657 F.3d 591, 593-4 (7th Cir.
2011) (sincere personal religious faith entitled to protection); Patel, 515 F.3d at 813. For
purposes of this ruling, the Court assumes that Kadamovas’ sincerely held religious belief led
him to maintain a religious diet during the relevant time period.
There is no dispute that at all times relevant to this action there was a religious diet
program (i.e., Common Fare Menu or Kosher Religious Diet as designated under BOP Policy,
PS # 4700.05) available to Kadamovas that on paper comported with his professed Orthodox
Christian faith. Dkt. Nos. 38-15, ¶ 5 and 50, p. 28-29. Kadamovas claims, however, that in
practice the religious diet program was and is unavailable to him because he was forced to
decline that diet program due to its nutritional inadequacy. See Hunafa v. Murphy, 907 F.2d 46,
47 (7th Cir. 1990) (recognizing that a prisoner can bring a free exercise claim where he is “put to
an improper choice between adequate nutrition and observance of the tenets of his faith”).
Kadamovas asserts that the food he received while on the Common Fare Menu was nutritionally
inadequate, spoiled, or insufficient in variety or quantities, and that he suffered injury from foodborne spoliation or contamination. Kadamovas argues that he was thus forced to choose between
inadequate nutrition and food-borne poisoning or adhering to the tenets of his belief. He blames
budget reductions for the protracted shortages and serving of unauthorized food items. Dkt. No.
50, p. 28.
13
In response, the Defendants argue that Kadamovas has failed to present evidence to
support his claims and thus he has failed to meet his burden of proof.8 Kadamovas is competent
to testify as to the food that he was provided while on the religious diet, but the testimony he
references, see Dkt. No. 50, pp. 30-32, lacks the specificity to raise a material fact regarding
whether the food provided on the religious diet during the relevant time period imposed a
“substantial burden” on the free exercise of his religion.
Even assuming there is sufficient evidence to support Kadamovas’ claims that his
sincerely held religious beliefs have been burdened by the execution of the Religious Diet
Program at FCC Terre Haute, however, Kadamovas’ claim still fails. Both the Free Exercise and
RFRA claims are brought against individual Defendants. In order to survive summary judgment
on his Free Exercise or RFRA claim under Bivens, Kadamovas must demonstrate that each
Defendant was personally involved in the deprivation of his rights. See Gossmeyer v. McDonald,
128 F. 3d 481, 494 (7th Cir. 1997). As the Seventh Circuit explained in Vance v. Rumsfeld, 701
F.3d 193 (7th Cir. 2012) (rehearing en banc):
Iqbal held that knowledge of subordinates’ misconduct is not enough for liability.
The supervisor must want the forbidden outcome to occur. Deliberate indifference
to a known risk is a form of intent. But Farmer v. Brennan, 511 U.S. 825, 114
S.Ct. 1970, 128 L.Ed.2d 811 (1994), holds that, to show scienter by the
deliberate-indifference route, a plaintiff must demonstrate that the public official
knew of risks with sufficient specificity to allow an inference that inaction is
designed to produce or allow harm. A warden’s knowledge that violence occurs
frequently in prison does not make the warden personally liable for all injuries.
See McGill v. Duckworth, 944 F.2d 344 (7th Cir.1991). Prisons are dangerous
places, and misconduct by both prisoners and guards is common. Liability for
wardens would be purely vicarious. Farmer rejected a contention that wardens (or
guards) can be liable just because they know that violence occurs in prisons and
don't do more to prevent it on an institution-wide basis.
8
The Defendants do not suggest for purposes of this motion that the conduct alleged by
Kadamovas was either justified as “reasonably related to legitimate penological interests” as
required by the First Amendment, O’Lone, 482 U.S. at 349, or “in furtherance of a compelling
governmental interest” as required under RFRA. See Grote, 708 F.3d at 853.
14
Id. at 204-05. In other words, to survive summary judgment Kadamovas needs to point to
evidence from which a reasonable trier of fact could conclude that a specific defendant knew of a
substantial risk to Kadamovas’ ability to freely exercise his religious belief and ignored that risk
because he wanted Kadamovas (or similarly-situated persons) to be harmed. The Defendants
cannot be held liable on the theory that they did not do enough to combat their subordinates’
misconduct. Id.
The Defendants argue that Kadamovas has failed to demonstrate the direct personal
involvement required to impose liability on them for violation of his Free Exercise or RFRA
rights. In response, Kadamovas argues that Defendants Lockett, Cozza-Rhodes, Coil, Serrato,
and Stephens were advised many times through the administrative grievance process and written
communications of the ongoing problems with the Religious Diet Program and refused to take
any remedial actions.
It is undisputed that Defendants Lockett, Cozza-Rhodes, Serrato, Coil, and Stephens were
not personally or directly involved in the selection of food or the preparation and delivery of
daily meals to inmates, including Kadamovas.9 The Complaint points the finger of blame for the
uncooked or spoiled food entrees at Correctional Officer Myers, as well as other individuals who
are not named as defendants (i.e., a Lt. Cox), who he alleges served the improper food and
refused to correct or properly re-heat it. The Complaint also alleges that Myers refused to call
Food Services to resolve the alleged food shortage on Kadamovas’ tray. Dkt. No. 1, ¶ 39.
9
Kadamovas suggests in his Statement of Material Facts in Dispute that Cozza-Rhodes
was required to approve substitutions pursuant to policy. See PS 4700.05. There is no dispute,
however, that she did not in fact approve substitutions. Whether this violated policy depends on
the interpretation of the word “substitutions” and “unscheduled changes.” It is well established,
however, that violations of regulations or policies or procedures do not rise to the level of a
Bivens violation. See, e.g., Davis v. Scherer, 468 U.S. 183, 194 (1984); Hernandez v. Estelle, 788
F.2d 1154, 1158 (5th Cir. 1986). Similarly, the dispute regarding whether Kadamovas received a
menu as directed by policy is not material.
15
Kadamovas has failed to establish that defendants Lockett, Cozza-Rhodes, Serrato, Coil,
and Stephens were personally and directly involved in violations of his religious exercise as
protected by the Free Exercise clause and RFRA. Cf. Johnson v. Snyder, 444 F.3d 579, 583-84
(7th Cir. 2006) (letters to Director insufficient to create a genuine issue of material fact regarding
personal responsibility of Director, where Director had delegated responsibility for reviewing
grievances, and there was no evidence that Director had read letters). “If the nonmoving party
fails to establish the existence of an element essential to his case, one on which he would bear
the burden of proof at trial, summary judgment must be granted to the moving party.” Ortiz v.
John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir. 1996), cert. denied, 519 U.S. 1115 (1997).
Accordingly, Defendants Lockett, Cozza-Rhodes, Serrato, Coil, and Stephens are entitled to
judgment as a matter of law on Count One of the Complaint.
B. Conditions of Confinement.
In Count Two, Kadamovas alleges that he was subjected to cruel and unusual punishment
in violation of the Eighth Amendment. Defendants Lockett, Cozza-Rhodes, Serrato, Coil, and
Stephens allegedly served him uncooked or spoiled food entrees. (See Dkt. No. 1, Count Two,
pp. 18-20). Defendant Nurse Heiser allegedly denied him medical services. (See Dkt. No. 1,
Count Three, pp. 20-22).
To state an Eighth Amendment claim, a plaintiff must allege facts showing that: (1) he
suffered substantial harm from the deprivation of humane conditions of confinement, and (2) the
defendant acted with a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825,
837 (1994). With respect to the subjective component of this two-part test, “a plaintiff must
establish that defendant(s) knew he faced a substantial risk of harm and disregarded that risk, ‘by
failing to take reasonable measures to abate it.’” Id. at 847. “[A] prison official cannot be found
16
liable under the Eighth Amendment for denying an inmate humane conditions of confinement
unless the official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.” Id.
1. Count Two: Food Service Complaints
The Eighth Amendment imposes a duty on prison officials to provide humane conditions
of confinement, including ensuring that inmates receive adequate food. Farmer, 511 U.S. at 832;
Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). Withholding food from prisoners is a
deprivation of a basic need that in some circumstances will satisfy the objective aspect of the
Farmer test. See Atkins v. City of Chicago, 631 F.3d 823, 830 (7th Cir. 2011) (“Depriving a
person of food for four days would impose a constitutionally significant hardship.”); Foster v.
Runnels, 554 F.3d 807, 812–13 (9th Cir. 2009) (concluding that denial of 16 meals in 23 days
was sufficient to support claim of deliberate indifference); Reed v. McBride, 178 F.3d 849, 853–
54 (7th Cir. 1999) (concluding that first Farmer element was satisfied by allegation that infirm
inmate was denied food for three to five days); Simmons v. Cook, 154 F.3d 805, 808 (8th Cir.
1998) (concluding that denial of four consecutive meals was a sufficiently serious deprivation).
The Defendants argue that Kadamovas has failed to produce any admissible evidence to
state an Eighth Amendment claim against them.10 Kadamovas makes the conclusory allegation
that “. . . the defendants ossify obstinacy to properly cook and serve the religious entrees. . . .”
Dkt. No. 1, ¶ 37. These conclusory allegations are contrary to the admissible evidence before the
10
Defendant Nurse Heiser’s duties involve the medical field and provision of medical
support and services—not food service duties—and these claims could not involve her. Not only
does Kadamovas not assert his claim in Count Two against Nurse Heiser, but the undisputed
division of labor recognized within the Bureau would not have the nursing staff involved in food
service issues.
17
Court. The duties and responsibilities of Defendants Lockett, Cozza-Rhodes, Serrato, Coil,
Stephens, and Heiser did not involve cooking and serving daily meals to inmates, and in fact
these Defendants were not directly and personally involved in the preparation and delivery of
food entrees to Kadamovas.
The parties dispute whether all pre-packaged food entrees were prepared and cooked
according to the manufacturer’s specifications as contained on their labels. If the food was not
properly prepared and cooked, however, that failure was due to an individual’s actions in
violation of the FCC-Terre Haute and Bureau’s Food Services policy, which provides a detailed
process promoting the safe receipt, processing, handling, and distribution of foods to the inmates.
There is no evidence that any of the Defendants who have moved for summary judgment were
responsible for the improper cooking or preparation of food.
In addition, the Defendant administrators have provided contingencies to accommodate
problems in the food delivery process. The record establishes that the policies enforced at FCC
Terre Haute were intended to accomplish the proper food preparation for inmates, or to allow an
immediate remedy if there was a problem with the temperature of the food item or the quantity
of the food tray. For example, the Food Services Department purchased microwaves for each
housing unit so that those persons delivering the meals could re-heat entrees if requested to do so
by the inmates. Moreover, if some food items are inadvertently omitted from a food tray, the
procedures provide that the person serving the meal can radio Food Service to remedy the
problem.
Kadamovas asserts that the Defendants are liable for Eighth Amendment violations
related to the food preparation and service based upon their general supervisory responsibilities,
not their direct or personal responsibility. As explained above, Kadamovas’ allegations of
18
general knowledge and supervision are not adequate to meet his burden to establish a viable
Eighth Amendment claim against these named defendants. The undisputed evidence of record
before this Court establishes that the Defendants either did not know about Kadamovas’ food
complaints or, when they were advised about the complaints, they took action, investigated the
complaints, found them to be without merit, and reported those findings to Kadamovas. As to the
subjective component of the Farmer test, the admissible evidence establishes that when the
Defendants knew of Kadamovas’ complaint about food selection, preparation, or delivery, the
Defendants did not ignore those complaints, but acted upon them to investigate the allegations
and determined that there were no problems that required action. Kadamovas’ disagreement with
the investigation’s conclusion does not make the administrators indifferent to his complaints.
The admissible evidence of record establishes that Kadamovas has failed to establish both
the objective and the subjective component required to state a proper Eighth Amendment claim
against Defendants Lockett, Cozza-Rhodes, Serrato, Coil, Stephens, and Heiser. The Defendants
therefore are entitled to judgment as a matter of law as to that claim.
2. Count Three – Medical Care Complaints
Count Three of the Complaint alleges that Nurse Heiser failed to provide medical care to
Kadamovas. Dkt. No. 1, pp. 20-22. Count Three does not assert any claims against Defendants
Lockett, Cozza-Rhodes, Serrato, Coil, or Stephens; however, in his response in opposition to
summary judgment Kadamovas generally asserts his denial of medical care claim against
Defendant Lockett, Nurse Heiser and Officer Myers. See Dkt. No. 50, p. 38. Kadamovas
generally asserts that he was entitled to, but did not receive, medical treatment in August 2010
and November 2010. See Dkt. No. 50, pp. 38- 41.
19
The Eighth Amendment imposes a duty on the government “‘to provide adequate medical
care to incarcerated individuals.’” Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006)
(quoting Boyce v. Moore, 314 F.3d 884, 888–89 (7th Cir. 2002)). As stated above, to survive
summary judgment Kadamovas must satisfy two elements, one objective and one subjective.
McGee v. Adams, 721 F.3d 474, 480 (7th Cir. 2013). To satisfy the objective element in the
medical care context, Kadamovas must “present evidence supporting the conclusion that he had
an objectively serious medical need.” Id. (internal quotation omitted). “’A medical need is
considered sufficiently serious if the inmate’s condition has been diagnosed by a physician as
mandating treatment or is so obvious that even a lay person would perceive the need for a
doctor’s attention.’” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir.2012) (quoting Roe v. Elyea,
631 F.3d 843, 857 (7th Cir. 2011)). As for the subjective element, Kadamovas must show that
the Defendants were aware of his serious medical need and were deliberately indifferent to it.
McGee, 721 F.3d at 480.
The admissible evidence of record establishes that Defendant Lockett had no role in the
delivery of daily medical care and services. Dkt. No. 38-2, ¶ 12. Kadamovas’ claims for denial of
medical care cannot be premised upon a general responsibility as a supervisor, but require a
direct and personal role in the violation asserted, which is missing in this record as to Lockett.
Therefore, Lockett is entitled to judgment as a matter of law on the medical care claim alleged
against him.
Kadamovas asserts that Defendant Heiser denied him medical care in August 2010 and
November 2010 when she refused his request for sick call because there was no treatment for
food-borne poisoning. Dkt. No. 1, ¶¶ 43-45. Defendant Heiser is entitled to summary judgment
20
regarding the August 2010 claim. The undisputed evidence reflects that Heiser was not on duty
at FCC Terre Haute in August of 2010.
As to the November 2010 incident, Kadamovas states in his response brief that, “[o]n
November 3rd, 2010 this claim was presented to Kadamovas by Nurse Heiser and telling him
that she was not going to refer him to either the PA or doctor because there wasn’t anything that
medical could do about food poisoning.” Dkt. No. 50, p. 29. His response cites to paragraph 45
of his Complaint, which was signed under penalty of perjury. That paragraph provides:
After suffering the plights of the uncooked/spoiled entrée November 12th and
then aggravating this plight of food borne consequences eating a second uncooked
entrée Sunday evening, November 14th, 2010 Kadamovas submitted yet another
Sick Call Request the following morning after being refused access to medical by
Officer Myers on the night of November 12th. Again Nurse Heiser reiterated
almost verbatim what she had advised Kadamovas of on November 3rd after
eating the uncooked/spoiled entrée on November 2nd. Nurse Heiser adamantly
told Kadamovas that she was not submitting him to be seen by either a doctor or
the P.A. no matter how bad the plights of the food poisoning was, because there
was absolutely nothing medical could do regarding simple food poisoning. Here
for almost three days after this Kadamovas continued to vomit blood, experience
severe watery diarrhea, extreme abdominal pains and cramping and suffered a
severe high temperature. It took approximately two weeks for these symptoms to
entirely dissipate.
In response, the Defendants argue that Kadamovas’ claims must fail against Heiser
because she testified that she did not deny him medical care as alleged and Kadamovas did have
medical care provided to him during November 2010. The Defendants state that procedures in
the SCU require medical personnel to have a daily presence in the unit and that nurses are not the
only staff that are responsible for, or who can assist, getting an inmate’s sick call to a doctor or
physician’s assistant. The fact that Kadamovas may have had other opportunities to have
requested a sick call visit, however, does not relieve Heiser from acting appropriately on his
request for a sick call visit.
21
Given the specific testimony and evidence on record, there are material facts in dispute
regarding whether Kadamovas suffered a serious medical need and whether Heiser was
deliberately indifferent to that serious medical need. Accordingly, Heiser is not entitled to
summary judgment as a matter of law as to the claim that she was deliberately indifferent to
Kadamovas’ serious medical needs in November 2010.
V. CONCLUSION
It has been explained that “summary judgment serves as the ultimate screen to weed out
truly insubstantial lawsuits prior to trial.” Crawford-El v. Britton, 118 S. Ct. 1584, 1598 (1998).
This is a vital role in the management of court dockets, in the delivery of justice to individual
litigants, and in meeting society’s expectations that a system of justice operate effectively.
Indeed, “it is a gratuitous cruelty to parties and their witnesses to put them through the emotional
ordeal of a trial when the outcome is foreordained” and in such cases, summary judgment is
appropriate. Mason v. Continental Illinois Nat'l Bank, 704 F.2d 361, 367 (7th Cir. 1983).
Kadamovas has not identified a genuine issue of material fact as to his claims in Counts
One or Two of this case, and the Defendants are entitled to judgment as a matter of law on those
counts. As to Count Three, material facts are in dispute regarding whether Defendant Heiser was
deliberately indifferent to Kadamovas’ serious medical needs in November 2010. Accordingly,
the motion for summary judgment (Dkt. No. 38) is DENIED as to Kadamovas’ claim against
Defendant Heiser with regard to his request for medical care in November 2010 and GRANTED
in all other respects.
SO ORDERED: 09/30/2013
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
22
Copy by United States Mail to:
Jurijus Kadamovas
Reg. No. 21050-112
Terre Haute U.S.P
Inmate Mail/Parcels
P.O. Box 33
Terre Haute, IN 47808
Copies via electronic distribution to all counsel of record
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