Wolfe et al v. Alexander et al

Filing 182

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Kevin H. Sharp on 9/30/2014. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
Tony Wolfe,
Plaintiff,
v.
Paul Alexander, et al.,
Defendants.

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Case No. 3:11-cv-0751
Judge Sharp

MEMORANDUM
Before the Court are five motions, listed in chronological order of filing: (1) Plaintiff’s
Motion for Summary Judgment Against Defendant Alexander as to Liability for Violation of
Plaintiff’s Fourteenth Amendment Right to Refuse a Medical Diet (ECF 117); (2) Plaintiff’s
Second Motion for Preliminary Injunction (ECF 127); (3) Defendant Burns’ Motion for Partial
Summary Judgment (ECF 156); (4) Defendants Campbell, McConnell, Steele, and Woods’
Motion for Summary Judgment (ECF 159); and (5) Plaintiff’s Motion for Partial Summary
Judgment for Violation of His Right Against Forced Medical Treatment Against Defendants
Alexander, Burns, Woods, and Campbell (ECF 162).
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
At all times relevant to this case, Plaintiff was housed as an inmate at the DeBerry
Special Needs Facility (“DeBerry”), a TDOC facility equipped to provide for prisoners with
medical needs. Plaintiff suffers from end-stage renal disease and takes dialysis treatments
because of his kidney failure. Defendant Paul Alexander, a medical doctor, was the Medical
Director at DeBerry from prior to Plaintiff’s arrival at DeBerry in 2007 until March, 2012.
Defendant Roberta Burns, also a medical doctor, replaced Defendant Alexander as Medical

Director from March 2012 until July 2013. In July 2013, Dr. Alexander returned to the position
of Medical Director at DeBerry.
Many of the facts in this matter are not in dispute. When Plaintiff arrived at DeBerry in
2007, Defendant Alexander had already established a policy (the “Diet Tray Policy”) requiring
that dialysis-patient inmates receive special diet trays at mealtimes with foods designed to meet
their medical needs. Under this policy, inmates were not allowed to sign an Against Medical
Advice (“A.M.A.”) form to refuse the diet tray.
In 2007, Defendant Alexander also implemented a policy pertaining to Plaintiff and
other dialysis-patient inmates at DeBerry which prohibited them from purchasing or possessing
anything from the commissary that was not on a pre-approved list of items (the “Restricted
Commissary Policy”). Defendant Alexander avers that the commissary restrictions were for the
purpose of meeting the medical needs of the dialysis patients. Plaintiff requested that he be
allowed to sign an A.M.A. form and thus be allowed to purchase commissary items that were not
on this pre-approved list. Prison staff did not allow him to do so.
On July 27, 2007, Defendant Alexander caused a staff member to issue a memo (the
“Commissary Warning Memo”) to all DeBerry staff members stating: “As per Dr. Alexander, ‘If
an inmate wishes to A.M.A. their special Commissary order, there will be NO Commissary AT
ALL. Commissary is a privilege.” (ECF 1, at 11.)
In response to the Commissary Warning Memo, Plaintiff filed additional grievances
(ECF 1, at 12--22) and continued attempting to order non-approved items from the commissary
by signing A.M.A. forms. On September 3, 2008, Defendant Alexander instituted a new policy
(the “No Commissary Policy”) stating: “Effective immediately dialysis patients are no longer
allowed to have and/or purchase food commissary.” (ECF 1, at 23.)
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The parties disagree about Defendant Alexander’s motivation for instituting the No
Commissary Policy. Plaintiff alleges it was in retaliation against him and other inmates for
grieving the restrictions on their access to commissary items. Dr. Alexander asserts that his
actions were not retaliatory but instead were motivated by concern for the inmates’ health. He
asserts that the inmates were informally trading commissary food and thus consuming food not
recommended for their medical conditions.
Plaintiff also requested to see a dietician to get advice about his diet. He filed grievances
after his requests were denied. (ECF 1, at 24--32.) In September 2008, a DeBerry staff member
provided a written response to one of his grievances, stating: “We currently do not have a
dietician on staff and I cannot get one to come work here. Your dietary issues are being
addressed by a doctor who is above the dietician.” (Id. at 24--25.) Staff responded similarly to a
grievance about the lack of access to a dietician in October 2008. (Id. at 29--30.)
On November 24, 2009, Plaintiff filed a grievance alleging that from October 2008 to the
time of his grievance, he was facing ongoing harassment, retaliation, and “[d]ifferent
standards/opportunities/programs” (Id. at 33--35.)
In December 2009, Plaintiff filed a complaint with the Office for Civil Rights in the U.S.
Department of Justice, which the agency immediately administratively closed for lack of
jurisdiction. (Id. at 36.)
On January 10 and June 21, 2011, Plaintiff filed additional grievances complaining about
the Diet Tray and No Commissary policies. He also alleged that Defendant Alexander was
continuing to “abuse his authority” and discriminating against dialysis patients. (Id. at 39--40,
43--44.) DeBerry staff returned the June 2011 grievance to him on a pre-printed form for

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grievances that are deemed “inappropriate to the grievance procedure” because he had a
“diagnosis by medical professionals.” (Id. at 41.)
On August 5, 2011, Plaintiff Tony Wolfe filed a pro se and in forma pauperis Complaint
against numerous defendants wherein he sought relief under 42 U.S.C. § 1983 for alleged
violations of his constitutional rights during his confinement at the Tennessee Department of
Correction (“TDOC”). (ECF 1.) On September 7, 2011, Plaintiff filed a pro se first amended
Complaint. (ECF 11.)
On December 14, 2011, Defendants Woods, Campbell, McConnell, and Steele filed a
motion to dismiss (ECF 40), in response to which Plaintiff filed a pro se verified Opposition.
(ECF 55.)
On July 5, 2012, the Magistrate Judge issued a Report and Recommendation (“R&R”).
Because the Magistrate Judge considered factual allegations in Plaintiff’s verified Opposition, he
treated the motion as one for summary judgment. The Magistrate Judge considered both the
original Complaint (ECF 1) and the First Amended Complaint (ECF 11), quoting from both
complaints to assist him in understanding Plaintiff’s claims.
On February 8, 2013, this Court considered Defendants’ objections to the R&R (ECF 69),
accepted and approved the R&R, and overruled the objections thereto. (ECF 102.) In approving
the R&R, the Court granted the motion to dismiss as to any claims involving matters that
occurred more than one year prior to the filing of the original Complaint on August 11, 2011.
But to the extent that Plaintiff alleged that the violation of his right to refuse medical treatment
had been ongoing and continuous, the Court held that any violation of § 1983 alleged to have
occurred within the year preceding the filing of the Complaint was not barred by the statute of
limitations. The Court also held that although a plaintiff pursuing a § 1983 claim must allege and
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prove that a defendant was personally involved in the alleged unconstitutional activity set out in
the complaint, “these Defendants apparently adhered to Dr. Alexander’s restrictions and, in so
doing, appear to have violated written Policies of TDOC,” and thus were not entitled to judgment
as a matter of law. (ECF 66, at 4.)
On March 28, 2012, Defendant Alexander filed a motion for summary judgment (ECF
57), to which Plaintiff filed a pro se response in opposition. (ECF 60.) The Magistrate Judge
issued an R&R, concluding that there were disputed issues as to material fact such that
Defendant Alexander was not entitled to judgment as a matter of law. (ECF 65.)
On July 19, 2012, this Court overruled Defendant Alexander’s objection to the R&R
(ECF 70), and accepted and approved it. (ECF 101.) In so doing, the Court ruled that claims
based on acts alleged to have occurred in 2007 and 2008 were barred by the one-year statute of
limitations set out in Tenn. Code Ann. § 28-3-104(a)(3). The Court also held that, to the extent
Plaintiff complained that he continued to be denied the right to refuse medical treatment, any
claims for instances that occurred within one year of the filing of the Complaint were not barred
by the statute of limitations. The Court held that “the right to refuse medical treatment . . . is
recognized by state law and constitutes a protectable liberty interest under the Fourteenth
Amendment.” (ECF 65, at 8.) The Court found that there were genuine disputes as to material
facts related to Defendant Alexander’s role in deciding upon and implementing the dietary
restrictions and his motivation for restricting and later eliminating commissary privileges, and
that a “reasonable jury could certainly conclude that these actions amount to retaliation.” (Id.)
On July 27, 2012, Plaintiff filed a Motion for Joinder (ECF 72), which the Magistrate
Judge interpreted as a motion to amend the complaint to add an additional defendant. The
Magistrate Judge granted this motion on December 6, 2012 (ECF 89), after he issued his R&Rs
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on the two motions for summary judgment. On December 31, 2012, Plaintiff filed his Second
Amended Complaint. (ECF 95.) On June 13, 2013, Plaintiff filed a Third (and final) Amended
Complaint with assistance of counsel, who had entered his appearance the previous day. (ECF
119.)
Plaintiff’s Third Amended Complaint raises some additional legal claims that were not
part of his previous complaints and therefore were not addressed in the earlier orders resolving
Defendants’ motions for summary judgment. This most recent complaint raises claims against
Defendants Alexander and Burns for their actions as medical directors at DeBerry. He also
brings claims against Defendants Julia Campbell and Clifford Woods, who were correctional
officers at DeBerry and enforced the medical director’s policies through disciplinary actions
against Plaintiff. There is no dispute that following the issuance of the No Commissary Policy,
Defendants Campbell and Woods disciplined Plaintiff for possession of disallowed commissary
items. He was placed in segregation and faced other restrictions. Plaintiff also brings claims
against Defendant Jewel Steele,1 who was the Warden at DeBerry, and Defendant Joel
McConnell, who was the Medical Director.
ANALYSIS
I. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) requires the Court to grant a motion for summary
judgment if “the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is entitled to

1

Plaintiff’s Third Amended Complaint also raises claims against Defendants Jennie Jobe and Ronald
Colson who were the Warden and Deputy Warden, respectively, at DeBerry from August 5, 2010 to
September 1, 2011.

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judgment as a matter of law.” If a moving defendant shows that there is no genuine issue of
material fact as to at least one essential element of the plaintiff’s claim, the burden shifts to the
plaintiff to provide evidence beyond the pleadings, “set[ting] forth specific facts showing that
there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir.
2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986). “In evaluating the
evidence, the court must draw all inferences in the light most favorable to the [plaintiff].”
Moldowan, 578 F.3d at 374.
“[T]he judge’s function is not . . . to weigh the evidence and determine the truth of the
matter, but to determine whether there is a genuine issue for trial.” Id. (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “the mere existence of a scintilla of evidence
in support of the plaintiff’s position will be insufficient,” and the plaintiff’s proof must be more
than “merely colorable.” Anderson, 477 U.S. at 249, 252. An issue of fact is “genuine” only if a
reasonable jury could find for the plaintiff. Moldowan, 578 F.3d at 374 (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
II.

Plaintiff’s Motions for Summary Judgment Against Defendant Alexander as to
Liability for Violation of Plaintiff’s Fourteenth Amendment Right to Refuse a
Medical Diet.
The Court interprets Plaintiff’s Third Amended Complaint as raising the following four §

1983 claims against Dr. Alexander: (1) Fourteenth Amendment Due Process violation of
Plaintiff’s right to refuse medical services by refusing the special medical diet and accessing the
regular meal trays and commissary food generally available to other inmates at DeBerry; (2)
First Amendment retaliation against Plaintiff for his attempts to exercise his right to refuse a
medical diet by continuing the No Commissary and Diet Tray policies, continuing to fail to
provide Plaintiff with medical education and counseling as to his dietary needs, and disciplining
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him for having unapproved commissary items; (3) Fourteenth Amendment Due Process violation
for subjecting Plaintiff to punitive segregation and other deprivations because he exercised his
right to refuse medical restrictions and possess commissary items; (4) Eighth and Fourteenth
Amendment violations of Plaintiff’s right to be free of cruel and unusual punishment through
deliberate indifference to his medical needs based on Defendant’s failure to assist Plaintiff with
developing a diet that would appropriately meet his medical needs. (ECF 119.) Plaintiff alleges
he has suffered physical and emotional damage as a result of Dr. Alexander’s actions, including
weight loss and “other ill effects” from consuming the special diet, from the “lack of
individualized medical guidance,” and from the disciplinary actions taken against him because
he was in possession of disallowed commissary items. (ECF 119, at ¶11.)
Although he raises four claims, the Court interprets both of Plaintiff’s motions for
summary judgment against Defendant Alexander (ECF 117, 162) as seeking judgment only on
the first claim enumerated above. Although Defendant Alexander’s response addresses the
retaliation claim, listed as claim number two above, the Court does not interpret Plaintiff’s
motion to be seeking judgment on that claim. Further, the Court interprets this first claim, based
on the Third Amended Complaint and the arguments raised in his various pleadings, as only
raising a claim that Plaintiff’s substantive due process rights were violated, not his procedural
due process rights.
A.

Fourteenth Amendment Substantive Due Process Claim

As to Plaintiff’s substantive due process claim, the Magistrate Judge cited in his R&R.
the Tennessee Health Care Decisions Act, which provides that “[a]n adult or emancipated minor
may give an individual instruction,” which is defined as “an individual’s direction concerning a
health care decision for the individual.” Tenn. Code Ann. §§ 68-11-1803(a), 68-11-1802(a)(10).
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The state statute also provides, “An individual is presumed to have capacity to make a health
care decision.” Tenn. Code Ann. § 68-11-1812(b). This Act is in the section of the Tennessee
Code that regulates “health facilities and resources.” Neither party addresses the applicability of
these provisions to the prison context.
However, as the Magistrate also noted, TDOC policy itself specifically allows inmates to
refuse “therapeutic” diets: “In accordance with Policy #113.51, inmates may refuse medical diets
by signing a Refusal of Medical Services, CR-1983. . . Inmates with an order for a therapeutic
diet tray may refuse the tray in favor of a regular diet tray.” TDOC Policy #113.35.VI.D.4.
TDOC policy #113.51 states that its purpose is “[t]o establish guidelines for an inmate’s
informed consent or refusal of health care services,” and outlines procedures to be followed
“[w]hen an inmate chooses to refuse an examination, treatment, or procedure.” TDOC Policy
#113.51.VI.B. Further, under the heading “Forced Treatment,” TDOC policy provides,
“Treatment beyond that required for maintaining the life of the inmate shall not be forced by
health care staff, absent a court order.” TDOC Policy 113.51.VI.D.
As a preliminary matter, the parties dispute the proper analysis for Plaintiff’s substantive
due process claim. Plaintiff’s motion quotes Black v. Parke, 4 F.3d 442 (6th Cir. 1993), for the
proposition that a state regulation confers a liberty interest protected by the Due Process Clause
“when it constitutes more than a simple procedural guideline, and ‘uses language of an
unmistakably mandatory character.’” Id. at 446 (quoting Hewitt v. Helms, 459 U.S. 460, 469
(1983)).
Defendant Alexander correctly points out that the Supreme Court explicitly abandoned
this “methodology” in Sandin v. Conner, 515 U.S. 472, 484 n.5 (1995). No longer does every

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state statute or prison regulation create a liberty interest protected by the Due Process Clause. As
the Sandin Court held,
States may under certain circumstances create liberty interests which are protected
by the Due Process Clause. But these interests will be generally limited to
freedom from restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due Process Clause of its
own force . . . nonetheless imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.
Id. at 483--84.
Thus, the first question the Court must resolve is whether the Tennessee Health Care
Decisions Act or the TDOC Policy guidelines create a liberty interest that is protected by the Due
Process Clause. The year after Sandin was decided, the Sixth Circuit considered a § 1983 claim
brought by an individual diagnosed with paranoid schizophrenia who was involuntarily
committed to a mental hospital in Kentucky. Noble v. Schmitt, 87 F.3d 157 (6th Cir. 1996).
Noble alleged that staff at the hospital violated his free speech and substantive and procedural
due process rights under the First and Fourteenth Amendments when they physically restrained
him and forcibly administered psychotropic medications. The Sixth Circuit found that Kentucky
law established a reasonable expectation of liberty in refusing medical treatment. Id. at 161. The
court elaborated: “Certain freedoms . . . survive incarceration. The Supreme Court has held that
individuals in state custody enjoy protectable liberty interests to be free from bodily restraint,
and to refuse medical treatment such as the administration of antipsychotic drugs.” Id. (citing
Cruzan v. Director, Mo. Dep’t. of Health, 497 U.S. 261, 278 (1990); Youngberg v. Romeo, 457
U.S. 307, 316 (1982); Washington v. Harper, 494 U.S. 210, 221 (1990)). The Noble court cited
Kentucky statutory law that provided hospitalized patients the right to refuse medical treatment
as well as the right to be free from unreasonable seclusion and restraint, and concluded that “the
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liberty interests which Noble invokes are firmly grounded in both the federal Constitution and
state law.” Id. at 161--62.
However, although the right to refuse medical treatment is clearly protected by the Due
Process Clause, that conclusion does not resolve the question of whether restricting a prison
inmate’s diet to foods that are deemed appropriate for his medical condition implicates
substantive due process rights. As Defendants Campbell and Woods point out in opposing
Plaintiff’s Motion for Partial Summary Judgment against them (addressed below), the Fourteenth
Amendment substantive due process right to refuse medical treatment arises out of the common
law tort of battery:
At common law, even the touching of one person by another without consent and
without legal justification was a battery. . . . This notion of bodily integrity has
been embodied in the requirement that informed consent is generally required for
medical treatment. . . . The logical corollary of the doctrine of informed consent is
that the patient generally possesses the right not to consent, that is, to refuse
treatment.
Cruzan, 497 U.S. at 269. Justice O’Connor elaborated on this principle in her concurring
opinion:
As the Court notes, the liberty interest in refusing medical treatment flows from
decisions involving the State’s invasions into the body. Because our notions of
liberty are inextricably entwined with our idea of physical freedom and selfdetermination, the Court has often deemed state incursions into the body
repugnant to the interests protected by the Due Process Clause. . . . The State’s
imposition of medical treatment on an unwilling competent adult necessarily
involves some form of restraint and intrusion.
Id. at 287--88 (citations omitted) (emphasis added).
In substantive due process cases, the Supreme Court requires a “careful description of the
asserted fundamental liberty interest.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997)
(internal quotation marks and citations omitted). The fundamental liberty interest asserted by
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Plaintiff here is that a prisoner has a right to be free of dietary restrictions imposed for purposes
of managing his medical condition. However, he has not cited, nor has the Court identified, a
single case recognizing such a liberty interest. All of the cases cited by the Plaintiff that address
substantive due process rights against forced medical treatment involved actions that constituted
an actual physical touching of the body. See, e.g., Cruzan, 497 U.S. at 269 (feeding/hydration
tube inserted in individual in vegetative state); Harper, 494 U.S. at 210 (forced administration of
antipsychotic drugs to mentally-ill inmate); Noble, 87 F.3d at 161-62 (forced medication of
involuntarily committed mental patient) Youngberg, 457 U.S. at 307 (bodily restraint of
intellectually disabled individual); Davis v. Agosto, 89 F. App’x. 523 (6th Cir. 2004) (suturing
bleeding cut on inmate’s head); McCormick v. Stalder, 105 F.3d 1059 (5th Cir. 1997) (INH
treatment on inmate with tuberculosis); Russel v. Richards 384 F.3d 444 (7th Cir. 2004)
(delousing shampoo on new inmates); State v. Vogel, 537 N.W.2d 358 (N.D. 1995) (forced food,
insulin, and monitoring of blood sugar of diabetic inmate); Brown v. Ionescu, No. 2-Civ1218,
2004 WL 2101962 (S.D.N.Y.) (implanting stent in inmate); Comm’r of Corr. v. Myers, 399
N.E.2d 452 (Mass. 1979) (forced hemodialysis treatment and medications). In contrast to these
cases, Plaintiff is not being forced to endure any “invasions into the body.” Cruzan, 497 U.S. at
287.
In addition, there are many cases that hold that a prison’s provision of food that is
deliberately rendered unappetizing for the purpose of punishing inmates does not violate
substantive due process. See, e.g., Turnboe v. Gundy, 25 F. App’x. 292 (6th Cir. 2001) (being fed
food loaf does not implicate a substantive due process liberty interest as it does not constitute an
atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
life). The complaint that prison food is unappetizing is somewhat different than Plaintiff’s
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complaint that the imposed food restrictions constitute forced medical treatment. But the Court
does find instructive the many cases in which courts have found that an inmate’s displeasure
with prison food does not implicate constitutional protections, assuming that the food is
nutritionally adequate. See, e.g., Tucker v. Rose, 955 F. Supp. 810 (N.D. Ohio 1997) (occasional
presence of rodents near prison food was insufficient basis to impose liability for violation of
Eighth Amendment rights when prison took steps to exterminate pests); Cosby v. Purkett, 782 F.
Supp. 1324 (E.D. Mo. 1992) (providing inmates with only cold meals not a violation of
prisoners’ rights if the food is adequate nutritionally and prepared in sanitary manner); Kirsch v.
Endicott, 549 N.W.2d 761, 765-66 (Wis. Ct. App. 1996) (holding that even if providing
prisoners in disciplinary segregation with cold bag lunches rather than hot prison meals received
by general population violated Wisconsin state administrative regulations, meals were
nutritionally adequate and “[a] violation of an administrative rule does not, in and of itself,
implicate the constitution”); Burgin v. Nix, 899 F.2d 733, 734 (8th Cir. 1990) (finding no
constitutional violation based on prison’s serving nutritionally adequate sack lunches to those in
disciplinary segregation and stating “control of the diet is within the[] discretion [of prison
officials], assuming it is adequate”).
Many cases in which inmates challenge their diet are in the context of claims that the
prison diet is not appropriate for the inmate’s medical condition and, as such, constitutes
deliberate indifference to medical needs in violation of the Eighth Amendment.2 In this case,

2

For example, in Wilson v. Woodford, a district court addressed a prisoner’s complaint that he should
have received an individualized diet as a diabetic, instead of receiving a “Heart Healthy” diet, “which is
restricted in sodium and fats,” which the prison served to the entire inmate population, with education for
diabetic inmates about making proper food choices from the diet served to the rest of the inmates. Wilson
v. Woodford, 1:05-CV-560, 2009 WL 839921, at *15 (E.D. Cal. March 30, 2009). The court held that
educating diabetic inmates about how to tailor the general “Heart Healthy” diet to their particular needs

13

although Plaintiff disagrees with the dietary restrictions imposed on him and was displeased that
he was not provided individual meetings with a dietician to discuss and craft his own diet, there
is no evidence in the record, other than his unsubstantiated opinion, that the food he was served
was not appropriate to his medical needs or was in any way nutritionally inadequate.
In addition to this line of cases holding that prison officials have discretion to control
inmates’ diets, assuming the diets are nutritionally adequate, there are also cases that hold that
loss of commissary privileges does not implicate due process concerns. See, e.g., Cato v. Watson,
212 F. App’x. 258, 259 (5th Cir. 2006); Tokar v. Armontrout, 97 F.3d 1078, 1083 (8th Cir. 1996)
(“[W]e know of no constitutional right of access to a prison . . . snack shop.”); Newell v. Ruth,
No. 1:11-cv-86, 2014 WL 4411045, at *9 (E.D. Tenn. Sept. 8, 2014) (“[C]ommissary access is a
privilege, not a right.”). Again, the general proposition that there is no constitutional right to
commissary access does not mean that there are no circumstances under which denial of access
to commissary could implicate a constitutional right. As the Magistrate Judge in this matter held,
denial of access to commissary in retaliation for an inmates’ exercising a constitutionally
protected right could, for example, be unconstitutional. But as a general matter, there is no
constitutional right to commissary access. Further, just as the Court has not found a case in
which a court has held that imposition of a meal tray designed to meet the medical needs of an
inmate over his objection is a violation of substantive due process rights, neither has the Court
found, nor has Plaintiff provided, a single case in which a prison’s restricting or denying access
to commissary items in order to control an inmate’s diet for medical purposes was found to

did not amount to deliberate indifference under the Eighth Amendment. Again, this is a different context
than the case at bar, but to be clear, the entire prison was served a restricted diet the prison deemed most
healthy, in keeping with the case law that, assuming the diet is nutritionally adequate, it does not
implicate constitutional rights.

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violate substantive due process rights. Thus, after further briefing and consideration, the Court
concludes that the restrictions on Plaintiff’s diet represented by the Diet Tray Policy, the
Commissary Restriction Policy, and the No Commissary Policy do not implicate liberty interests
that are protected by the Fourteenth Amendment Due Process Clause.
Furthermore, even if the restrictions on Plaintiff’s diet do, in fact, violate his substantive
due process rights to refuse medical treatment, “that right is not absolute and is particularly
susceptible to regulation in the prison setting.” Davis, 89 F. App’x. at 528. “[T]he proper
standard for determining the validity of a prison regulation claimed to infringe on an inmate’s
constitutional rights is to ask whether the regulation is reasonably related to legitimate
penological interests. . . . This is true even when the constitutional right claimed to have been
infringed is fundamental, and the State under other circumstances would have been required to
satisfy a more rigorous standard of review.” Harper, 494 U.S. at 223 (internal quotation marks
and citations omitted). The Supreme Court has explicitly recognized the “legitimacy, and the
necessity, of considering the State’s interests in prison safety and security.” Id. at 223.
The Supreme Court has set forth several factors that are relevant to determining the
reasonableness of the regulation at issue:
First, there must be a “valid, rational connection” between the prison regulation
and the legitimate governmental interest put forward to justify it. Thus, a
regulation cannot be sustained where the logical connection between the
regulation and the asserted goal is so remote as to render the policy arbitrary or
irrational. Moreover, the governmental objective must be a legitimate and neutral
one. . . . A second factor relevant in determining the reasonableness of a prison
restriction . . . is whether there are alternative means of exercising the right that
remain open to prison inmates. . . . A third consideration is the impact
accommodation of the asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources generally. . . . Finally, the
absence of ready alternatives is evidence of the reasonableness of a prison
regulation.
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Turner v. Safley, 482 U.S. 78, 89--90 (1987).
Applying the first of the three Turner factors relevant to forced medical treatment, see
Harper, 494 U.S. at 224—25, the court finds that Defendants have put forth legitimate interests
that have a valid, rational connection to the dietary restrictions at issue.3 First, Defendants argue
that the state has a legitimate interest in promoting the health of inmates. See, e.g., McCormick,
105 F.3d at 1062 (“[E]ven if [the inmate] has a substantive due process right not to be forcibly
medicated against tuberculosis—for his own benefit as well as that of the prison—the prison’s
policy was nevertheless constitutional.”).
This is a legitimate interest standing alone, but it also implicates a second interest raised
by the government, which is avoiding the cost of future medical expenses incurred because of
failure to appropriately treat medical conditions. This consideration also fits into the third Turner
factor, the impact that accommodation of the asserted constitutional right will have on the
allocation of prison resources generally. As the Sixth Circuit explained in Davis v. Agosto,
although suturing a bleeding cut on an inmate’s head against his wishes implicated his
substantive due process right against forced medical treatment, the procedure was reasonably
related to legitimate penological concerns of protecting his health and also protecting against
future increased medical expenses and, as a result, did not violate his constitutional rights:

3

Defendant Alexander urges the Court to consider Plaintiff’s purposes for objecting to the food
restrictions, citing cases in which plaintiffs refused medical treatment for the purpose of manipulating the
prison. See, e.g., State ex rel. Schuetzle v. Vogel, 537 N.W. 2d 358, 364 (N.D. 1995); Myers, 399 N.E.2d at
458. In each of these cases, the inmates explicitly refused medical treatment to attempt to manipulate
prison authorities to either change their placement within the prison system or to change their security
level. The Court does not find any evidence that Plaintiff’s efforts to resist dietary restrictions are for
purposes of manipulating the prison system.

16

It was well within the authority of the medical officials at the prison to determine
that closing the wound was necessary to the health and safety of Davis as well as
to those around him. Had they opted not to provide the treatment, the officials
could have subjected themselves to a deliberate-indifference claim and would of
course have remained responsible for providing any further medical treatment
prompted by the failure to close the wound.
Davis, 89 F. App’x. at 528; see also Schuetzle, 537 N.W.2d at 364 (future medical cost of
allowing diabetic prisoner to refuse treatment considered as one factor justifying forced
injections of insulin). In Russell v. Richards, 384 F.3d 444 (7th Cir. 2004), the Seventh Circuit
found the involuntary application of delousing shampoo to new inmates permissible based on
concerns about inmates’ health as well as future costs to the prison of failing to treat for lice:
The jail has an obligation to ensure the safety and medical well-being of its
inmates and its personnel, and toward that end the jail has a legitimate interest in
preventing an inmate population and staff from being exposed to lice, not to
mention a legitimate fiscal interest in avoiding the costs associated with
eradicating a lice infestation.

Id. at 448.
In analyzing further the third Turner factor, “the impact accommodation of the asserted
constitutional right will have on . . . the allocation of prison resources generally,” the Court
considers Plaintiff’s argument that the dietary restrictions were not necessary. Defendant Burns
ended the Diet Tray Policy on August 20, 2012, allowing Plaintiff and other dialysis patient
inmates to begin opting out of the diet trays and receiving regular trays. Plaintiff argues that this
change has not caused “widespread health problems”:
Indeed, prior to the change in policy Defendant Burns correctly perceived that the
nephrologist would be able to compensate for the negative effects of the regular
meal tray in dialysis. In part, this was because the main difference between the
regular tray and the renal tray, as it relates to dialysis patients, is only in their
respective phosphorous content. As it pertains to Plaintiff Wolfe in particular, his
17

level of potassium and sodium have not exceeded safety thresholds since the
change.
(ECF 163, at 13--14.)
The excerpt from Plaintiff’s brief demonstrates the extent to which he invites this court to
second-guess and micromanage the prison’s decisions. The Due Process Clause simply does not
provide inmates with a liberty interest in refusing a diet designed to address medical needs such
that the prison’s Medical Director would, as a result, be required to work with a nephrologist to
compensate for the inmate’s refusal to follow a medically appropriate diet by adjusting how the
nephrologist conducts the dialysis treatment. The Supreme Court has repeatedly held that courts
owe “substantial deference to the professional judgment of prison administrators.” Overton v.
Bazzetta, 539 U.S. 126, 132 (2003); see also Beard v. Banks, 548 U.S. 521, 528 (2006).
Plaintiff’s demands would require the prison to expend its resources in ways it clearly deems
unnecessary or inappropriate. This Court declines to micromanage the prison in areas typically
within prison authorities’ expertise and authority in a way that is inconsistent with Supreme
Court precedent.
In conclusion, the Court finds that the dietary restrictions imposed on Plaintiff for
medical reasons do not implicate a federal substantive due process right and, even if they did,
that right is not absolute, particularly in the prison context. The Court concludes after analyzing
the reasons offered by the State that the restrictions are reasonable, and thus, Plaintiff’s
constitutional rights were not violated. Accordingly, Wolfe’s motions for summary judgment
(ECF 117, 162) on the Fourteenth Amendment Due Process claim will be denied.

18

B.

Fourteenth Amendment Equal Protection Claim

In Plaintiff’s second motion for summary judgment, he argues that Defendant Alexander
violated his rights under the Equal Protection Clause (ECF 163, at 5). Plaintiff raised this claim
in his pro se response to Defendant Alexander’s motion for summary judgment (ECF 60),
though it was not disposed of in the Court’s order on that motion. However, Plaintiff did not
raise this argument in his first motion for summary judgment against Defendant Alexander, a
motion brought with the assistance of counsel. (ECF 117.) Defendant Alexander objects to the
Court’s considering this claim because it was not in Plaintiff’s Third Amended Complaint.
Plaintiff argues that under “notice pleading” standards, his complaint only needs to show the
facts upon which the claim is based; it does not have to include every possible legal theory of
liability. (ECF 179-1, at 1 (citing Kennedy v. Nat’l Juvenile Detention Ass’n, 187 F.3d 690, 695
(7th Cir. 1999) (“[T]he complaint does not necessarily have to point to the proper statute in order
to state a cause of action to which [a plaintiff] is entitled to relief.”).)
The Court disagrees. In Tucker v. Union of Needletrades, Industrial., & Textile Employees.,
407 F.3d 784 (6th Cir. 2005), the Sixth Circuit rejected plaintiff's argument that she was entitled
to liberal construction of her complaint to include new a theory raised for the first time at the
summary judgment stage, because “[o]nce a case has progressed to the summary judgment stage
. . . the liberal pleading standards under . . . [the Federal Rules] are inapplicable.” Id. at 787–88
(internal quotation marks omitted). Plaintiff has not sought to amend his complaint to include
this claim, and it is not properly before the Court.
Further, even if the Court considered this claim on the merits, it cannot survive summary
judgment. The Equal Protection Clause of the Fourteenth Amendment precludes the states from
making “distinctions which either burden a fundamental right, target a suspect class, or
19

intentionally treat one differently from others similarly situated without any rational basis for the
difference.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005) (citing Vacco
v. Quill, 521 U.S. 798, 799 (1997); Village of Willowbrook v. Oletech, 528 U.S. 62, 564 (2000)
(per curium)). The Court has already held that Plaintiff has no constitutional right to be free of
health-based dietary restrictions in prison, so there is no right being burdened, much less a
fundamental right. Because he has not amended his complaint to raise an Equal Protection claim,
it is unclear to what, if any, suspect class he might belong. See Simpson v. Ameji, 57 F. App’x.
238, 239 (6th Cir. 2003) (upholding dismissal of Equal Protection claim brought by prisoner with
rheumatoid arthritis because he did not allege he was a member of a protected class). Plaintiff
offers no cases to suggest that his being a dialysis patient places him in a suspect class.
Additionally, the prison’s treating him differently because he is a dialysis patient has a rational
basis, as is clear from the Court’s analysis above. Finally, even if his Equal Protection rights
were violated, the Turner v. Safley analysis applies to all inmate constitutional claims, including
equal-protection claims. See Harper, 494 U.S. at 223--24 (“We made quite clear that the
standard of review we adopted in Turner applies to all circumstances in which the needs of
prison administration implicate constitutional rights.”). The prison’s imposition of restrictions on
the types of foods that were available to Plaintiff from the commissary and on his meal trays did
not constitute a violation of Plaintiff’s rights under the Equal Protection Clause, as the Court’s
earlier analysis of the Turner v. Safley factors demonstrates.
C.

Other Claims Against Defendant Alexander

Defendant Alexander has not filed for summary judgment after the filing of Plaintiff’s
Third Amended Complaint. It appears that all but the retaliation claim against him are likely
appropriate for resolution on summary judgment, as the retaliation claim appears to be the only
20

one involving a genuine dispute of material fact. Clearly, based on the Court’s ruling today, the
substantive due process based on the imposition of dietary restrictions should be resolved on
summary judgment. The Court would find it helpful for Defendant Alexander to file a motion for
summary judgment on at least this claim, pursuant to Rule 56(c), and any of the other claims he
deems appropriate.4
III.

Cross Motions for Partial Summary Judgment on Substantive Due Process Claim
Against Defendant Burns
Defendant Burns served as medical director between Defendant Alexander’s terms, from

March 2012 to July 2013. Plaintiff alleges that upon assuming the Medical Director position in
March 2012, Defendant Burns continued Defendant Alexander’s Diet Tray Policy and No
Commissary Policy. Plaintiff alleges that on August 2, 2012, after he declined the diet tray and
requested a regular tray, Defendant Burns personally instructed staff members not to provide
Plaintiff with a regular tray but instead not to bring him any food at all, which he calls the
“Starvation Policy.” He alleges this “Starvation Policy” continued for the next eighteen days, and
ended on August 20, 2012 when she allowed the staff to provide Plaintiff with a regular tray and
discontinued the Diet Tray Policy.
Plaintiff brings the following claims against Defendant Burns: (1) Fourteenth
Amendment Due Process violation of Plaintiff’s right to refuse medical services by refusing the
special medical diet and accessing the regular meal trays and commissary food generally
4

Rule 56(f) provides, “[a]fter giving notice and a reasonable time to respond, the court may: . . . (3)
consider summary judgment on its own after identifying for the parties material facts that may not be
genuinely in dispute.” The Advisory Committee Notes on the 2010 Amendments suggest, “[i]n many
cases, it may prove useful first to invite a motion; the invited motion will automatically trigger the regular
procedure of subdivision (c).”

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available to other inmates at DeBerry; (2) First Amendment retaliation for Plaintiff’s attempts to
exercise his right to refuse a medical diet; (3) Fourteenth Amendment Due Process violation for
placing Plaintiff in punitive segregation and imposing other deprivations because he attempted to
refuse medical restrictions and possess commissary items; and (4) Eighth and Fourteenth
Amendment violations for unlawfully starving Plaintiff for eighteen days.
The Court interprets both parties’ motions (ECF 157, 163) as pertaining only to the first
claim enumerated above— the substantive due process claim related to the dietary restrictions
imposed on Plaintiff. The parties disagree about what actions Defendant Burns took and what
authority she had over various decisions related to dietary restrictions. However, these
disagreements of fact are not material to the resolution of this claim. Whatever her role was in
enforcing dietary restrictions and whatever her authority was to change those policies, the Court
has already held that the imposed food restrictions do not violate Plaintiff’s substantive due
process rights. Accordingly, Defendant Burns is entitled to judgment on this claim.
Given the Court’s resolution of Plaintiff’s claim against Defendants Campbell and
Woods below, the Court invites Defendant Burns to file a motion for summary judgment on the
third claim enumerated above, the claim that she violating his due process rights by disciplining
him for violating the food restrictions policies.
IV.

Cross Motions for Summary Judgment on Claims Against Defendants Woods and
Campbell
Plaintiff raises the following claims against both of these defendants: (1) Fourteenth

Amendment Substantive Due Process violation for imposition of dietary restrictions; (2)
Fourteenth Amendment Due Process violation for “subjecting him to punitive segregation and
other deprivations because he . . . possess(ed) commissary items;” and (3) Eighth and
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Fourteenth Amendment violations for allegedly starving him for eighteen days. The parties have
filed cross motions for summary judgment as to the first claim enumerated above, the claim that
the various policies imposing dietary restrictions violated his substantive due process rights.
Defendants Woods and Campbell’s motion for summary judgment also encompasses the other
two claims against them. (ECF 160, 163.)
A.

Defendants’ Campbell and Woods’ 11th Amendment Immunity Argument

The parties agree that insofar as Defendants Woods and Campbell are sued in their
official capacities, these defendants have Eleventh Amendment immunity from Plaintiff’s suit
under Section 1983 for declaratory relief and damages, and that summary judgment for these
Defendants on all claims raised against them in their official capacities is appropriate.
Accordingly, the Court will grant judgment on any official capacity claims.
B.

Cross Motions for Summary Judgment on Substantive Due Process Claim
for Imposition of Dietary Restrictions

Defendants Woods and Campbell are also sued in their individual capacities. There is no
dispute that Defendants Campbell and Woods were correctional officers at DeBerry and that they
implemented disciplinary measures against Plaintiff for infractions related to the dietary
restrictions, primarily for his possession of disallowed commissary items. Neither of these
individuals remains employed at DeBerry. After Defendant Alexander’s No Commissary Order,
a dialysis patient’s possession of commissary food items was considered possession of
contraband, a disciplinary offense under TDOC policy. On June 1, 2011, while searching
Plaintiff’s property, Defendant Woods found commissary food. Defendant Campbell issued a
disciplinary report for possession of contraband for this incident. Plaintiff pled guilty to this
Class C disciplinary infraction. On November 15, 2011, Defendant Campbell found food
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commissary in Plaintiff’s cell again, while conducting a cell search, and Plaintiff was issued a
disciplinary report for this incident. Plaintiff pled guilty to this charge as well.
The Court has already concluded that the food restrictions imposed on Plaintiff do not
implicate a protected liberty interest and that, even if a liberty interest were implicated, the
restrictions are permissible because they are “reasonably related to legitimate penological
interests.” Harper, 494 U.S. at 223 (1990). Thus, to the extent, if any, that these Defendants bore
any responsibility for or authority over the dietary restrictions, the restrictions were
constitutionally permissible. Furthermore, even if the food restrictions at issue violated
Plaintiff’s substantive due process right to be free of unwanted medical treatment, this right was
not a “clearly established . . . constitutional right of which a reasonable person would have
known,” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Accordingly, these Defendants would
have been entitled to qualified immunity if the Court had found a constitutional violation.
Accordingly, for the reasons already articulated, judgment will be entered in favor of
Defendants Woods and Campbell on this claim.
C.

Defendants Campbell and Woods’ Motion for Summary Judgment on Claim
of Fourteenth Amendment Due Process Violation for Disciplining Plaintiff
for Possession of Disallowed Commissary Items

Defendants Campbell and Woods move for summary judgment on Plaintiff’s claim that
the punitive segregation and “other deprivations” violated his due process rights. Plaintiff has not
filed for summary judgment on this claim. Although it is unclear from Plaintiff’s most recent
Complaint to what the phrase “other deprivations” refers, in his response to Defendants’ motion
for summary judgment, Plaintiff states that “much of Plaintiff’s claim against Defendants Woods
and Campbell extends not just to those specific instances in which they punished Plaintiff and
confiscated his commissary, but also to their role in the everyday enforcement of the ‘No
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Commissary’ policy,” as well as their maintaining “watchful eyes on Plaintiff to ensure that he
did not get hold of any food commissary.” (ECF 167, at 7.) As an initial matter, based on the
way Plaintiff discusses this claim in his briefs, the Court interprets this, too, as a substantive due
process claim, as opposed to a procedural due process claim.
Defendants Woods and Campbell have several arguments about why they are entitled to
judgment on this second claim: (1) deprivation of commissary and disciplinary proceedings are
not “atypical and significant hardship[s] on the inmate in relation to the ordinary incidents of
prison life,” Sandin, 515 U.S. at 472, and, therefore, do not give rise to substantive due process
rights; (2) this claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994) and its progeny; (3)
Plaintiff has failed to exhaust his administrative remedies; (4) they are entitled to qualified
immunity.
1.

“Atypical and Significant Hardship”

First, Defendants Woods and Campbell argue that being deprived of commissary and
subjected to disciplinary proceedings are not “atypical and significant hardship[s] on the inmate
in relation to the ordinary incidents of prison life,” Sandin, 515 U.S. at 472, and, therefore, do
not give rise to substantive due process rights. To be clear, this claim is not a retaliation claim.
This claim solely raises the disciplinary actions as an alleged violation of his substantive due
process rights to be free of medically-motivated restrictions on his diet, to have access to the
commissary, and to be free of segregation imposed for possessing disallowed commissary items.
It is unclear to the Court whether these Defendants had any authority or right not to
follow the orders promulgated by the medical director. But given the Court’s holding that the
dietary restrictions imposed on Plaintiff are lawful, the imposition of punishment for possessing
food in violation of the No Commissary Policy is also permissible. Further, even if the Restricted
25

Commissary or No Commissary policies were a violation of substantive due process, and even if
these defendants’ roles were such that they could be liable for the substantive due process
violation of imposing a restricted diet, after Sandin, being placed in solitary confinement does
not necessarily implicate a protected liberty interest, and nothing about the implementation of
solitary confinement in this situation raises this punishment to one which implicates a protected
liberty interest. See id. at 473 (“[Plaintiff’s] discipline in segregated confinement did not present
the type of atypical, significant deprivation in which a State might conceivably create a liberty
interest.”); Jones v. Baker, 155 F.3d 810, 812 (6th Cir. 1998) (“[W]e agree with the district court
that under Sandin a liberty interest determination is to be made based on whether it will affect
the overall duration of the inmate’s sentence and there is no evidence here that segregation will
impact plaintiff’s sentence.”).
2.

Heck v. Humphrey

Relatedly, the Court agrees with these Defendants’ argument that Plaintiff’s claim related
to discipline imposed on him for possession of disallowed commissary is barred by the doctrine
established in the Heck v. Humphrey, 512 U.S. 477 (1994), and the line of Supreme Court cases
following Heck:
[Our] cases, taken together, indicate that a state prisoner's § 1983 action is barred
(absent prior invalidation)—no matter the relief sought (damages or equitable
relief), no matter the target of the prisoner's suit (state conduct leading to
conviction or internal prison proceedings)—if success in that action would
necessarily demonstrate the invalidity of confinement or its duration.
Wilkinson v. Dotson, 544 U.S. 74, 81--82 (2005). The disciplinary actions of which Defendant
complains and to which he pled guilty have not been invalidated. Nor, in this Court’s view, is it
likely these guilty pleas could have been invalidated. The food restrictions are permissible, and
26

as such, possession of disallowed commissary items was an infraction appropriate for
disciplinary consequences under TDOC policy.
3.

Exhaustion of Administrative Remedies

The Court disagrees with Defendants Woods and Campbell’s assertion that judgment
should be entered on Plaintiff’s two substantive due process claims because he failed to exhaust
his administrative remedies as required by the Prison Litigation Reform Act. 42 U.S.C. §
1997e(a). When Plaintiff initially grieved the No Commissary Policy in 2008, the response to the
grievance was, “This is considered a medical order and I nor anybody at this institution can
change this order legally.” (ECF 164-8, at 5.) The Court agrees with Plaintiff that this response
indicates the prison staff’s position was that the issue was non-grievable, which excuses his
failure to exhaust his remedies may be excused. See Giano v. Goord, 380 F.3d 670 (2nd Cir.
2004) (holding “special circumstances” justified plaintiff’s failure to exhaust based on his
reasonable interpretation of Department of Correction policy); Lane v. Doan, 287 F. Supp. 2d
210 (W.D.N.Y. 2003) (holding a “plaintiff may proceed despite nonexhaustion where he has
been led to believe by prison officials that his alleged incident was not a “grievance matter. . .
.”); Taylor v. Swift, No. 12-cv-5623, 2014 WL 2118431 (E.D.N.Y. May 21, 2014) (“The PLRA's
exhaustion requirement does not apply where the incarcerated plaintiff's failure to exhaust
available administrative remedies results from a reasonable though mistaken interpretation of
[prison] regulations” regarding whether an assault could be resolved through the grievance
procedure.)
Defendants Woods and Campbell object that, in the Sixth Circuit, an inmate cannot claim
futility to avoid the exhaustion requirement, citing the holding in Hartsfield v. Vidor, 199 F.3d
305, 309 (6th Cir. 1999) (“[A]n inmate cannot simply fail to file a grievance or abandon the
27

process before completion and claim that he has exhausted his remedies or that it is futile for him
to do so. . . .”). The prisoner in the Hartsfield case had claimed it was futile for him to exhaust
his administrative remedies because he was seeking monetary damages, which are not available
under the Michigan prison grievance procedures. But the Sixth Circuit has held “that a grievance
procedure is not ‘available’ even if one exists on paper if the defendant prison officials somehow
prevent a prisoner from using it.” Brock v. Kenton Cnty, 93 Fed. Appx 793, 798 (6th Cir. 2004)
(collecting cases); see also¸ Himmelreich v. Federal Bureau of Prisons et al., No. 13-4212, 2014
WL 4413214 at *1 (6th Cir. September 9, 2014) (“[W]e have excused a prisoner’s lack of
complete compliance [with exhaustion of administrative remedies] when the improper actions of
prison officials render the administrative remedies functionally unavailable.”).
The Court has already determined that judgment will be entered for Defendants on the
first and second claims against them, as enumerated above, but it does find that the Plaintiff was
reasonable in interpreting the prison’s response to his attempt to grieve the No Commissary
policy as an assertion that the complaint was not one that could be resolved by the usual
grievance procedures. Thus, if the Court were not entering judgment in Defendants favor on
these claims, Plaintiff would not be precluded from obtaining relief for not pursuing
administrative remedies in light of the prison’s indication to him that this matter could not be
resolved in that manner.
4.

Qualified Immunity

Last, the Court agrees with Defendants Woods and Campbell that if the Court had found
that they violated Plaintiff’s constitutional rights by disciplining him for possession of
disallowed commissary items, they would have been entitled to qualified immunity.

The

Supreme Court has set forth a two-part inquiry for determining whether qualified immunity will
28

operate as an Aimmunity from suit@ in a given case. A[T]he first inquiry must be whether a
constitutional right would have been violated on the facts alleged; second, assuming the violation
is established, the court must address whether the right was clearly established . . . on a . . .
specific level.@ Saucier v. Katz, 533 U.S. 194, 200 (2001). Assuming a constitutional violation is
established, the Court must undertake the second inquiry to determine whether the violation was
clearly established at the time of the official=s actions. AThe relevant dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted. . . . >The contours of the
right must be sufficiently clear that a reasonable official would understand that what he is doing
violates that right.=@ Saucier, 533 U.S. at 202 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). It would not be clear to a reasonable correctional officer that it would be unlawful to
discipline an inmate for having food commissary that the medical director of the prison had
instructed the staff he was not allowed to possess because of his medical needs. Accordingly,
these Defendants would have been entitled to qualified immunity if the Court had found a
constitutional violation.
V.

Defendants McConnell and Steele’s Motions for Summary Judgment
Defendant McConnell was the Health Administrator from April 2010 to October 2012.

Defendant Steele was the warden of DeBerry from September 2011 to June 2013. Plaintiff raises
the same claims against each of these defendants as he raised against Defendants Woods and
Campbell: (1) Fourteenth Amendment Substantive Due Process claim for imposition of dietary
restrictions; (2) Fourteenth Amendment Due Process claim for “subjecting him to punitive
segregation and other deprivations” by imposing on him dietary restrictions; and (3) Eighth and
Fourteenth Amendment violations for allegedly starving him for eighteen days. Plaintiff brings
29

the following additional claim against Defendant McConnell: (4) Eighth Amendment claim
alleging McConnell violated his right to be free of cruel and unusual punishment through
indifference to his medical needs.
Again, the parties agree that insofar as they are sued in their official capacity, Defendants
McConnell and Steele have Eleventh Amendment immunity from suit for declaratory relief and
damages. Accordingly, the Court will grant judgment on any official capacity claims.
To the extent that Plaintiff raises the first two claims against these defendants in their
individual capacities, the Court will grant Defendants McConnell and Steele judgment on these
claims on the basis that the food restrictions did not violate Plaintiff’s constitutional rights, for
the reasons already set forth herein.
In the alternative, even if the food restrictions did constitute a violation of Plaintiff’s
constitutional rights, the allegations against Defendants McConnell and Steele fail for lack of
personal involvement in the incidents at issue. The Sixth Circuit has held
§ 1983 liability must be based on more than respondeat superior, or the right to
control employees. See Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th
Cir.1982). Thus, a supervisory official's failure to supervise, control or train the
offending individual is not actionable unless the supervisor “either encouraged the
specific incident of misconduct or in some other way directly participated in it. At
a minimum a plaintiff must show that the official at least implicitly authorized,
approved, or knowingly acquiesced in the unconstitutional conduct of the
offending officers.” Id.
Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).
As to the first and second claims against McConnell for allegedly imposing food
restrictions and disciplining infractions of the food restriction policies, the Court finds no
evidence that the active performance of McConnell’s job involved participation in or authority
over the food restrictions imposed on Plaintiff. Plaintiff points to a deposition by Defendant
30

Alexander in which he states that the medical staff held meetings to discuss health issues and that
various staff members provided input about the ways to handle inmates’ medical needs. (ECF
167-1, at 3.) Plaintiff also points to Defendant Burns’ deposition, in which she said, “The health
services administrator . . . was the supervisor even of the nonclinical supervisor, even of the
nurse practitioners. He was their boss. I was their clinical boss. He was their administrative boss.
The same way with the nurses and the nursing department, the entire place answered to Tim
[McConnell].” (Id.). The portion Defendant Alexander’s deposition to which Plaintiff points
does not even specify that Defendant McConnell was present at those meetings, nor does
Plaintiff point to any other evidence that indicates that McConnell was present at those meetings
or, indeed, any discussions related to the food-restriction policies. The citation to Defendant
Burns’ deposition is also not helpful to Plaintiff. Defendant Burns makes clear that she, as
medical director, was the clinical supervisor of the medical staff and that Defendant McConnell’s
function was merely administrative. Even if Defendant McConnell was present at those
meetings, there is simply no evidence that he was a direct participant in the development of the
food-restriction policies, the implementation of those policies, or the discipline for the violations
of those policies, in the manner required for imposition of liability under Section 1983.
Defendant McConnell is entitled to summary judgment in his favor as to Plaintiff’s substantive
due process claims related to food restrictions and discipline for possession of commissary items.
As to the first and second claims against Defendant Steele for the imposition of and
discipline related to the food restrictions, Plaintiff only argues that the warden had a position of
authority, that Plaintiff spoke to her about the food-restriction policies and asked her to intervene
to prevent the correctional officers from confiscating his commissary and initiating disciplinary
sanctions against him, and that she failed to intervene to stop the implementation of the policy or
31

the discipline for the related infractions. (ECF 167, at 3.) Thus, even if the imposition of the food
restrictions and the imposition of discipline for violations of the food restrictions were
unconstitutional, and the Court concludes they were not, Defendant Steele was not personally
involved such that she could be held liable under Section 1983. She too is entitled to summary
judgment on the first two claims enumerated above.
As to the third claim raised against both Defendants McConnell and Steele and the fourth
claim raised only against Defendant McConnell, Plaintiff provides no evidence that they were
personally involved, and does not address these claims at all in his response to the motion for
summary judgment filed by these Defendants. (ECF 167, at 3--4.) The Court will grant
Defendants’ motion for summary judgment on this these claims.
For the foregoing reasons, the Court will grant judgment to Defendants McConnell and
Steele on all claims raised against them in this matter.
VI.

Plaintiff’s Motion for Preliminary Injunction
Plaintiff has moved for a preliminary injunction requiring Defendants to allow him to

reject restrictions on his ability to purchase and possess commissary. The Court has ruled that he
does not have a right to be free of dietary restrictions imposed for medical purposes and will
enter judgment in favor of the Defendants on the claims related to this issue. This motion will be
denied as moot.
CONCLUSION
For the foregoing reasons, the Court will take the following actions on the pending
motions:

32

(1) deny Plaintiff’s Motion for Summary Judgment Against Defendant Alexander as to
Liability for Violation of Plaintiff’s Fourteenth Amendment Right to Refuse a Medical Diet
(ECF 117);
(2) deny Plaintiff’s Second Motion for Preliminary Injunction (ECF 127);
(3) grant Defendant Burns’ Motion for Partial Summary Judgment on Claim that she
violated his Fourteenth Amendment Substantive Due Process Claim by imposing dietary
restrictions (ECF 156);
(4) grant Defendants Campbell, McConnell, Steele, and Woods’ Motion for Summary
Judgment on all claims raised against them (ECF 159); and
(5) deny Plaintiff’s Motion for Partial Summary Judgment for Violation of His Right
Against Forced Medical Treatment Against Defendants Alexander, Burns, Woods, and Campbell
(ECF 162).
An appropriate order shall issue.

___________________________________
KEVIN SHARP
UNITED STATES DISTRICT JUDGE 

33