The opinion of the court was delivered by: PHILIP REINHARD, District Judge
For the reasons stated on the reverse memorandum opinion and
order, the court grants defendants' motion to dismiss in part and
denies it in part.
MEMORANDUM OPINION AND ORDER
Plaintiff, Benyehudah Whitfield, a prisoner at Pontiac
Correctional Center, filed a pro se complaint against multiple
defendants employed by the Illinois Department of Corrections
claiming that his First, Eighth and Fourteenth Amendment rights
were violated while he was incarcerated at the Pinckneyville and
Dixon Correctional Centers. Plaintiff filed his second amended
complaint seeking relief on four counts. Defendants filed a
Fed.R.Civ.P. 12(b)(6) motion to dismiss various counts and
defendants from this action. Plaintiff responded to the motion to
The court will dismiss a complaint under Rule 12(b)(6) only if
the plaintiff can prove no set of facts consistent with his
allegations, whichwould entitle him to relief. See Hishon v.
King and Spaulding, 467 U.S. 69, 73 (1984); Conley v. Gibson,
355 U.S. 41, 45-46 (1957). The plaintiff's factual allegations
and any inferences reasonably drawn therefrom shall be examined
in the light most favorable to the plaintiff. The court shall
accept as true the factual allegations of the complaint and draw
all reasonable inferences in favor of the plaintiff. Chaney v.
Suburban Bus Div. Of Regional Transp. Auth., 52 F.3d 623,
626-627 (7th Cir. 1995).
Defendants move to dismiss Count 2 (Right of Access to the
Courts) arguing that plaintiff has shown no actual injury and by
his allegations has pleaded himself out of court. The factual
allegations which plaintiff argues in support of his right of
access claim relate to the May 21, 2002 hearing at Dixon during
which he alleges that he was ordered by defendant Henry to stop
pursuing his grievances and to withhold filing a complaint. To
state a right of access claim, plaintiff must make specific
allegations that as a result of the defendants' alleged conduct,
he suffered prejudice such as missed court deadlines, failure to
make timely filings or dismissal of legitimate claims. Ortloff
v. United States, 335 F.3d 652, 656 (7th Cir. 2003).
Plaintiff must allege that he had a non-frivolous legal claim
that was frustrated or impeded by the failure of the prison
officials to assist him in the preparation and filing of
meaningful legal papers and that he suffered some quantum of
detriment as a result Lehn v. Holmes, 364 F.3d 862, 868
(7th Cir. 2004). The basis of plaintiff's access to court
claim rests upon the hearing he had with defendant Henry and
Weiner. Plaintiff alleges that he was told by defendant Henry
that he would receive a religious diet. Plaintiff also alleges
that he was ordered by defendant Henry to stop pursuing his
complaints, and that if he did not stop, he would be transferred
back to Pinckneyville. Plaintiff then proceeds to state that he
disobeyed defendant Henry's order by filing a complaint thereby
effectively pleading himself out of court on this claim.
Plaintiffils to allege that he suffered any prejudice or that his
legal claims were in any way frustrated or impeded by any of the
defendants. This court holds that Plaintiff has not stated a
claim of right of access to the courts.
Plaintiff also alleges retaliation in Count 2. Plaintiff claims
that he was told by defendants Henry and Weiner that he would
receive a religious diet, and then was denied the diet because he
continued to pursue the grievances he had filed. Retaliation
claims are not subject to any requirement of heightened pleading.
Walker v. Thompson, 288 F.3d 1005, 1011 (7th Cir. 2002).
Plaintiff's simple allegation that he was denied his religious
diet because he continued to pursue his claims survives dismissal
because there are sufficient facts to permit the court and
defendants to "understand the gravamen of the plaintiff's
complaint." Id. Finally, plaintiff alleges that another inmate
was receiving the religious diet even though this inmate had not
verified his religion as an African Hebrew Israelite. This
allegation provides no basis for claim in retaliation. It may
possibly be construed as a claim of equal protection. However, a
claim of equal protection against a prison administrative
decision can succeed only if the plaintiff can show that "state
officials had purposefully and intentionally discriminated
against him." Shango v. Jurich, 681 F.2d 1091, 1104 (7th
Cir. 1982). Therefore, this court holds that plaintiff has
sufficiently stated enough facts of retaliation to withstand
defendants' motion to dismiss Count 2 in that regard.
Plaintiff alleges a violation of his Eighth Amendment rights
under Count 3. Plaintiff alleges that he was denied a religious
diet, lost weight due to a self-imposed hunger strike and was not
provided with a standard mattress. Plaintiff argues that these
circumstances inflicted cruel and unusual punishment on him. The
Eighth Amendment is violated by a prison official only when the
act/omission is (1) "sufficiently serious" and results in the
denial of "the minimal civilized measure of life's necessities"
and (2) is the result of "deliberate indifference" or reckless
disregard of the risk by the official. Farmer v. Brennan,
511 U.S. 825, 834-835 (1994). Although plaintiff was not provided
with a religious diet or served with food after the regular
mealtimes, plaintiff was able to consume the portions of his meal
which were not prohibited by his unverified religion. Plaintiff
was also allowed to save his food for later consumption as long
as he did not take the tray with him. Taking the facts pled by
plaintiff as true, this court finds no basis that these
conditions of prison life resulted in a denial of minimal
necessities. Plaintiff alleges that he was forced to be selective
in what he ate to keep within his religious requirements.
Although the lesser amount of food that plaintiff was able to
consume might have made him less full, this falls short of cruel
and unusual punishment. Similarly, not having a standard mattress
during plaintiff's hunger strike does not constitute sufficiently
serious facts to justify a Eighth Amendment violation. Plaintiff
had some other `object' to sleep on and was told that he would
get a standard mattress as soon as he stopped his hunger strike.
Such occurrences do not approach the sufficiently serious
standard required to state an Eighth Amendment violation. The
motion to dismiss Count 3 is granted.
Defendants seek to dismiss all claims brought by plaintiff
against them in their official capacity. A suit against a state
official in his official capacity is effectively a suit against
the state. Power v. Summers, 226 F.3d 815, 818 (7th Cir.
2000). A state is not a "person" subject to suit under
42 U.S.C. § 1983. Id. Official capacity suits against state officials
which seek only prospective relief are permitted by
42 U.S.C. § 1983, Will v. Michigan Dep't of State Police. 491 U.S. 58, 71
(1989), and are not forbidden by the Eleventh Amendment.
Ameritech Corp. v. McCann, 297 F.3d 582, 585-586 (7th Cir.
2002); See also Ex parte Young, 209 U.S. 123 (1908). A
plaintiff seeking injunctive relief must show a real and
immediate threat of future harm. Knox v. McGinnis,
998 F.2d 1405, 1413-1414 (7th Cir. 1993). This court is in accord with
defendants that there is no continuing violation of federal law
because plaintiff is no longer at Pinckneyville or Dixon
Correctional Centers. Plaintiff is currently receiving his
religious diet and claims only against defendants for the
specific incidences that occurred at the two correctional
centers. This court finds that plaintiff has not alleged any
facts which would amount to a substantial likelihood of future
harm. See Stewart v. McGinnis, 5 F.3d 1031, 1038-1039
(injunctive relief prayed for was directed at original
institution and since prisoner was no longer there, nor was there
any indication that prisoner would be sent back there, relief was
denied). All claims against defendants in their official capacity
Defendants argue that plaintiff has failed to state a claim
against individual defendants Tucker, Anderson, Mekeel,
Penwarden, Humphrey, Perry and McCarty. To recover damages under
42 U.S.C. § 1983, plaintiff must establish defendants' personal
responsibility for the claimed violation of his constitutional
rights. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.
1995). The requirement of personal responsibility is satisfied
where the defendants acted or failed to act with a deliberate or
reckless disregard of plaintiff's constitutional rights, or where
the alleged conduct occurred at the defendants' direction or
consent. Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.
1982). Plaintiff seeks to recover damages from defendants Tucker
and Anderson because they denied his grievance upon review.
Defendants Tucker and Anderson are members of the Administrative
Review Board who had no involvement in the allegedly
unconstitutional acts. Their job was to review inmate grievances.
An inmate's grievance procedure is a procedural right, not a
substantive one, and does not give rise to a constitutionally
protected interest. Antonelli v. Sheahan, 81 F.3d 1422,
1430-1431 (7th Cir. 1996). The alleged facts also do not show
any deliberate or reckless disregard of the plaintiff's
constitutional rights by defendants Tucker and Anderson.
Plaintiff has not stated a claim against defendants Tucker and
Anderson and they are dismissed from this suit. Defendant Mekeel
(spelled "McKeel" in Plaintiff's Complaint) is identified as a
Lieutenant at Dixon Correctional Center. Plaintiff states that
the reason why he was not allowed to have supper that day was
because he refused to accept the dinner tray. Defendant Mekeel
was apparently enforcing security by ordering the plaintiff to
leave the dietary after refusing to accept his dinner tray. The
court cannot see how plaintiff's constitutional rights have been
breached when plaintiff freely admits that he was not permitted
have that meal as a result of his own actions. The court finds
that plaintiff has failed to state a cause of action and
defendant Mekeel is dismissed from this suit. The situation is
similar for defendants Penwarden, Humphrey, Perry and McCarty who
are alleged to have denied plaintiff's request to take his bath
after hours. Two separate occasions on which plaintiff's request
for an after hours bath was denied do not translate into a
constitutional violation. Additionally, plaintiff's religion had
not yet been verified and defendants Penwarden, Humphrey, Perry
and McCarty cannot be expected to have accommodated every request
of the prisoners upon their self-declaration of a particular
religion. Defendants Penwarden, Humphrey, Perry and McCarty are
dismissed from this action. For the foregoing reasons, all claims
against defendants Tucker, Anderson, Mekeel, Penwarden, Humphrey,
Perry and McCarty are dismissed.
Finally, defendants seek to have all claims against defendant
Henry dismissed. Defendant Henry is alleged to have denied the
plaintiff's request to take a few slices of bread back to his
unit. Plaintiff also alleges that defendant Henry told him that
he would get a religious diet and then retaliated by denying it
to him when he continued to pursue his claims. As discussed
above, this court finds that plaintiff has stated a cause of
action in regard to his claim for retaliation by defendant Henry.
However, this court finds that the allegation that defendant
Henry denied plaintiff's request to carry back bread on one
occasion does not state a claim of cruel and unusual punishment.
Hence, defendants' motion to dismiss all claims against defendant
Henry is granted for claims under Count 3 but denied for claims
under Count 2.
For the foregoing reasons, the court grants defendants' motion
to dismiss in part and denies it in part.
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