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Derrick Shaw v. State of Illinois et al

October 27, 2011

DERRICK SHAW PLAINTIFF,
v.
STATE OF ILLINOIS ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Thursday, 27 October, 2011 04:14:42 PM

Clerk, U.S. District Court, ILCD

OPINION

Plaintiff, proceeding pro se and currently incarcerated in Western Illinois Correctional Center, alleges that the soy served in Illinois prisons is making him sick. The case is before the Court for a merit review pursuant to 28 U.S.C. § 1915A.

LEGAL STANDARD

The Court is required by § 1915A to review a Complaint filed by a prisoner against a governmental entity or officer and, through such process, to identify cognizable claims, dismissing any claim that is "frivolous, malicious, or fails to state a claim upon which relief may be granted." A hearing is held if necessary to assist the Court in this review, but, in this case, the Court concludes that no hearing is necessary. The Complaint and its attachments are clear enough on their own for this Court to perform its merit review of Plaintiff's Complaint.

The review standard under § 1915A is the same as the notice pleading standard under Federal Rule of Civil Procedure 12(b)(6). Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). To state a claim, the allegations must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Factual allegations must give enough detail to give "'fair notice of what the . . . claim is and the grounds upon which it rests.'" EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(add'l citation omitted). The factual "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" Id., quoting Bell Atlantic, 550 U.S. at 555. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged . . . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic, 550 U.S. at 555-56. However, pro se pleadings are liberally construed when applying this standard. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).

ALLEGATIONS

Plaintiff alleges that the food served in Illinois prisons contains an excessive amount of soy. He contends that the soy is causing him "chronic fatigue, rashes, acne, weight gain, heart problems, gastrointestinal distress, kidneys problems, thyroid issues." (d/e 1, p. 8). His treating physician, Dr. Shah, allegedly refuses to prescribe a soy-free diet for Plaintiff. The IDOC's Medical Director caused the denial of Plaintiff's grievance by opining that "current extensive medical literature does not support the claim that Soy diets cause significant medical problems and certainly not at the concentrations it is being served within the IDOC." (d/e 1, p. 12).

ANALYSIS

The Court cannot rule out a possible Eighth Amendment claim for deliberate indifference to Plaintiff's serious medical need for a soy-free diet. The Court is aware that many prisoners have filed claims in this District seeking a soy-free diet. The Court is not aware of any of those cases ending in the prisoners' favor. See, e.g., Conley v. Keys, 2011 WL 3819437 (C.D. Ill., Judge Shadid)(granting summary judgment for defendants on plaintiff's soy claim)(not reported in F.Supp.2d). However, at this point, the Court accepts Plaintiff's allegations as true. Plaintiff should be aware that if he loses this case, costs may be assessed against him pursuant to Fed. R. Civ. P. 54(d), even though he is proceeding in forma pauperis . McGill v. Faulkner, 18 F.3d 456, 458 (7th Cir. 1994)("[T]he rule that indigent prisoners, like anybody else, may be required to reimburse costs others have expended defending the prisoners' unsuccessful suits serves the valuable purposes of discouraging unmeritorious claims and treating all unsuccessful litigants alike.").

This claim will proceed only against those with the medical or nutritional training to determine whether the soy presents a risk of harm to Plaintiff's health. Dr. Shah is presumably the treating physician with the authority to prescribe the soy-free diet, and Dr. Talbot had that authority when Plaintiff was incarcerated in Danville Correctional Center. Dr. Puisis, the IDOC Medical Director, presumably has the authority to determine whether the soy in the prison food is safe from a medical standpoint. The case will thus proceed against Defendants Shah, Puisis, and Talbot. "John Doe," the food services dietary administrator at Western Illinois Correctional Center, will also remain in as a ...


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