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Clayton Rockman v. Blair Leibach

March 26, 2012

CLAYTON ROCKMAN, PLAINTIFF,
v.
BLAIR LEIBACH, JOE BOYER, ELIZABETH ROBSON, KEITH ANGLIN, VICTOR CALLOWAY, MARCIA KEYS, RICHARD KEYS, RICHARD TERRELL, WESLEY BROWN, AND JOHN CHAMBERS, DEFENDANTS.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

E-FILED

Monday, 26 March, 2012 04:29:53 PM

Clerk, U.S. District Court, ILCD

OPINION

This case is before the court for ruling on the Motion for Summary Judgment (#90) filed by Defendants, Blair Leibach, Joe Boyer, Elizabeth Robson, Keith Anglin, Victor Calloway, Marcia Keys, Richard Keys, Richard Terrell, Wesley Brown, and John Chambers. This court has carefully reviewed the arguments of the parties and the documents filed by the parties. Following this careful and thorough review, Defendants' Motion for Summary Judgment (#90) is GRANTED.

FACTS*fn1

Plaintiff, Clayton Rockman, was incarcerated at the Danville Correctional Center (Danville) until he was transferred to the Centralia Correctional Center in August 2009. Plaintiff testified during his deposition that he started filing grievances at Danville in 2003. Defendant Robson was the librarian at the Danville Correctional Center. Defendants Boyer and Brown were correctional officers at Danville. Plaintiff claims that these Defendants retaliated against him for filing grievances complaining about their conduct and prison conditions. Specifically, Plaintiff claims that Robson denied him access to legal materials, issued threats and disciplinary reports, failed to issue call passes to the library and provided false and misleading information to correctional officials causing Plaintiff to be removed from the library. He claims that Boyer threatened the issuance of false disciplinary reports, provided false information in an effort to get Plaintiff placed in segregation, and issued an October 5, 2006 disciplinary ticket.

Plaintiff claims that Brown gave him menacing looks and harassed him. On February 16, 2007, Plaintiff filed a grievance and stated that Brown told him to remove a ski band Plaintiff was wearing on his neck when Plaintiff was outside in extremely cold weather. This grievance was denied because Plaintiff's ski band was meant to be worn over the ears and inmates have been advised that any clothing is not to be worn in a manner other than what it was designed for. On June 3, 2007, Plaintiff filed a grievance and stated that Brown harassed him when Plaintiff was on his assignment at the gym. Plaintiff stated that he was looking through the double doors inside the gym. Plaintiff stated that Brown left his post at the chowline to tell Plaintiff in a hostile manner to move away from the door. Plaintiff stated that Brown evidently felt that Plaintiff did not move fast enough because he then threatened Plaintiff. This grievance was denied because Brown stated that he was performing his duties investigating why an inmate was in a certain area. Plaintiff also filed numerous other grievances claiming that Brown harassed him, which were also denied. In addition, Plaintiff claims that Brown ordered Correctional Officer Ness to issue him a disciplinary report for failing to possess identification on June 12, 2007. A final summary report dated June 16, 2007, stated that Plaintiff admitted he forgot his ID and pleaded guilty to the charge of violating institutional rules by failing to possess identification.

Plaintiff has filed the Declarations of several people who were inmates with him at Danville. In his Declaration dated January 30, 2012, Anthony M. Lewis stated that he observed Brown harassing Plaintiff and observed Brown and Boyer call Plaintiff out of the library and send him back to the housing unit. Lewis stated that he observed Brown telling Plaintiff to move away from the gym doors and forcing Plaintiff to go back into the pool room. In his Declaration dated August 9, 2011, Freddie Falconer stated that he observed Brown threaten Plaintiff and saw Boyer and Brown remove Plaintiff from the library. In his Declaration dated November 16, 2010, Don LaRue stated that he observed Brown harass Plaintiff by instructing Plaintiff to stop playing "pool, chess, or ping-pong" and by changing the channel when Plaintiff was watching television. LaRue stated that he observed Brown tell Plaintiff to get away from the gym doors. In his Declaration dated November 17, 2010, Lamel Johnson stated that he observed Brown and Boyer call Plaintiff out of the library and talk to Plaintiff, after which Plaintiff returned to the library. Johnson stated that he also observed Brown "single out" Plaintiff.

Plaintiff is diabetic, suffers from hypertension and is Hepatitis C positive. Plaintiff testified that he was put on a high protein diet with a snack bag in 2002 for his diabetes. Plaintiff testified that he started taking medication for Hepatitis C in June 2008. Plaintiff testified that the medication made him sick to his stomach and caused him to lose weight so Dr. Ameji ordered a double portion diet on June 9, 2008. Plaintiff claims that Defendants Calloway, Marcia Keys, Richard Keys and Terrell were deliberately indifferent to his serious medical need by denying Plaintiff a double portion diet. Plaintiff testified that he stopped taking the medication for Hepatitis C in July 2008 because he did not receive the double portion diet ordered by Dr. Ameji.

The evidence shows that Marcia Keys is Food Service Manager at Danville. She is responsible for the safety and sanitation of the dietary unit, the scheduling of dietary staff, ordering of food and following the master menu for offender meals. She is also responsible for ensuring offenders receive therapeutically prescribed diets that are approved by the Illinois Department of Corrections (Department). The Department's Therapeutic Diet Manual sets out the guidelines for ordering therapeutic diets and outlines the therapeutic diets approved for service within the Department. Marcia Keys lacks the authority to exceed the guidelines outlined within the Therapeutic Diet Manual. Therapeutic diets are ordered by physicians and dentists from the approved list. All diet orders are recorded in the medical records by the attending physician and a copy of the order is sent to food service.

A double portion diet is not included in the Therapeutic Diet Manual as a diet approved by the Department. Diets that are deemed necessary by staff physicians that are not on the approved diet list are to be approved by the Agency Medical Director prior to implementation. Further, diets not on the approved list require the Food Service Manager to obtain a food plan by the Food Service Administrator. Therefore, a therapeutic diet order for a double portion diet requires approval from Susan Griswold, the Department's Food Service Administrator.

The dietary department at Danville has no record of receiving a therapeutic diet order of a double portion diet for Plaintiff. On June 13, 2008, dietary received an order for a High Protein diet for Plaintiff. The diet order indicates that Mary Miller, the Health Care Unit Administrator, signed the order for the physician. On July 2, 2008, Dr. Ameji prescribed a High Protein/High Calorie diet for Plaintiff. The initials MM next to Dr. Ameji's signature indicate that Mary Miller signed for the physician. This order stated that Plaintiff was receiving medical treatment causing weight loss. The order was received by dietary on July 14, 2008. A High Protein/High Calorie diet is included in the Therapeutic Diet Manual. It is described as a regular diet in the form of three meals daily from the food service department plus a snack. Further supplements are provided to the individual from the health care unit one to three times daily, based on the attending physician's prescription. The Manual specifically states that "[t]here are no double trays provided for this diet from the food service department."

When a therapeutic diet order is received seeking a non-approved diet, the procedure within the dietary department is to stamp the order and return it to the Health Care Unit. It is the responsibility of the Health Care Unit to determine the necessity of the non-approved diet and seek Agency Medical Director approval or order a pre-approved diet from the Manual. Marcia Keys stated in her affidavit, dated December 12, 2011, that she would have sought the necessary approval from Susan Griswold, Food Service Administrator, if a therapeutic diet not included in the Therapeutic Diet Manual was received by dietary with all necessary approvals.

The record contains a copy of a therapeutic diet order for Plaintiff which ordered a "double portion" for three months. The order was dated July 29, 2008, and was signed by a physician. The order includes a notation that it was received by dietary on August 6, 2008. However, the order does not show that it was recorded. The double portion diet order did ...


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