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Larry M. Johnson v. Michael Randle

May 31, 2012


The opinion of the court was delivered by: Reagan, District Judge:


This case, brought by pro se Plaintiff Larry Johnson pursuant to 42 U.S.C. § 1983, comes before the Court on four motions. For the reasons explained below, the Court GRANTS in part and DENIES in part Defendants' motion for summary judgment (Doc. 131). Additionally, the Court GRANTS Johnson's Motion for Leave to Amend (Doc. 126), DENIES Johnson's Motion for Judgment on the Pleadings (Doc. 145), and DENIES Johnson's motion for summary judgment (contained within Doc. 136).


Johnson, a Buddhist inmate at the Illinois Department of Corrections' (IDOC's) Menard Correctional Center, sued seven defendants on February 19, 2010.*fn1 In his complaint, Johnson alleges that deficiencies in his diet violate his right to be free from cruel and unusual punishment (under the U.S. Constitution's Eighth Amendment), his right to practice his religion (under the U.S. Constitution's First Amendmentand the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. (RLUIPA)), and the Illinois Unified Code of Corrections, 730 ILCS 5/3-7-2(d).

Broadly stated, Johnson's Eighth Amendment claims are that the IDOC's Lacto-Ovo-Vegetarian (LVO) diet does not provide enough calories, that substitutions by Menard's food service department render the LVO diet even less healthy, and that the textured vegetable protein that makes up the bulk of the protein calories in his diet is a severe health risk. Regarding his right to practice religion, Johnson - who eats an LVO diet because he is Buddhist - claims his religious practice is burdened, because a Menard policy puts him (and all inmates on a special diet) at the back of the chow line. The resulting inadequate time to eat, he says, substantially pressures him to abandon his beliefs. Johnson has sued Defendants in their individual capacities (for a combined $7 million in damages) and in their official capacities (for declaratory relief and an injunction relating to his prison diet).

Pursuant to 28 U.S.C. § 1915A, the undersigned judge issued a threshold order in August 2010. That Order focused on Johnson's Eighth Amendment claims, which proceeded against all Defendants. After a long, contentious, and at times poorly executed discovery process - (see "Defendants' Admissions" below), Defendants moved for summary judgment in November 2011.*fn2 They also moved to strike Johnson's lengthy response brief (and over nine hundred pages of exhibits); that motion was denied. Defendants secured leave to file a reply, but then did not file one.

Before proceeding to the merits of Defendants' summary judgment motion, the Court examines Johnson's suspect invocation of the Illinois Unified Code of Corrections as a basis for relief. See Tylka v. Gerber Prods. Co. , 211 F.3d 445, 447--48 (7th Cir. 2000) ("federal courts are always obliged to inquire sua sponte whenever a doubt arises as to the existence of federal jurisdiction") (internal citations and quotation marks omitted). Accord Arbaugh v. Y & H Corp. , 546 U.S. 500, 514 (2006).


In his complaint, Johnson alleges that Defendants are "in violation . . . 730 ILCS 5/3-7-2(d)" (Doc. 1, 7). That statute, part of Illinois' Unified Code of Corrections, requires that "[a]ll institutions and facilities of the [IDOC] shall provide every committed person with a wholesome and nutritional diet at regularly scheduled hours." 730 ILCS 5/3-7-2(d). Unfortunately for Johnson, the Unified Code furnishes him no right of action. See Ashley v. Snyder, 739 N.E.2d 897, 902 (Ill. App. 2000) ("Prison regulations . . . were never intended to confer rights on inmates . . . Instead, Illinois DOC regulations, as well as the Unified Code, were designed to provide guidance to prison officials in the administration of prisons") (emphasis in original).

Insofar as Johnson asks for relief under the Unified Code, the Court declines to exercise jurisdiction over his claims. See Bommersbach v. Ruiz , 461 F. Supp. 2d 743, 756 n.3 (S.D. Ill. 2006) (collecting cases) ("Were there any serious question of the Court being required to address the matter of a private right of action under the Illinois Code of Corrections, the most prudent course would be to decline to exercise jurisdiction . . .").


Since 1997, Larry Johnson has been an inmate at Menard Correctional Center in Illinois. As an avowed Buddhist, he partakes of the IDOC's LVO diet, which does not include meat but does include animal byproducts like milk, cheese, and eggs (Doc. 132-1, 1). At mealtime, according to Menard's rules, he - along with any other inmate who is on a special diet - must wait at the end of the line to be served.

Like all diets in the IDOC system, the statewide LVO diet is created by Defendant Suzann Griswold-Bailey (Griswold), an Illinois-licensed registered dietician and the IDOC's Food Service Administrator (Doc. 132-1, 1). Lloyd Hanna, Menard's Dietary Manager, ensures that Menard's dietary department complies with Griswold's menus (Doc. 132-3). From time to time, food on the IDOC master menu is unavailable, and substitutions are made - either by Hanna or by an "authorized agent" (id.). It is unclear whether those "agents" include Defendants Brickhouse, Lillard, or Winters, who are Food Service Supervisors in charge of serving Menard's prison population. One of the major sources of protein for LVO inmates is textured vegetable protein (TVP), a soy-based food whose nutritional value has been questioned by at least a few doctors (Doc. 1-1, 59--69).

Until the year 2000, Johnson worked in the kitchen at Menard and could eat anything he wanted (Doc. 136-2, 6; Doc. 137, 2). When he stopped working the kitchen, Johnson began losing weight. According to his medical records, Johnson (who stands 5'10") weighed 178 pounds in December 2004, 168 pounds in April 2005, 160 pounds in July 2006, 156 pounds in October 2006, 153 pounds in April 2007, 150 pounds in August 2009, 141 pounds in September 2009, 145 pounds in April 2010, and 153 pounds in September 2010.

At some point prior to filing suit, Johnson began to log the food he consumed (see Doc. 137-30, 2, et seq.). Though the days he recorded food are random, the time period over which Johnson recorded his diet stretched for almost ten months. Johnson logged the type of food, the amount of food, and (by using a nutritional reference) tabulated the caloric intake for each meal and each day. Additionally, he recorded the amount of food he claims he could not eat due to very short meal times. Over the fifty days he logged his calories, Johnson was served an average of 2,045 calories per day, and actually consumed an average of 1,843 calories per day. Johnson, complaining about the TVP in his diet and the number of calories his diet provided him, filed a formal grievance to his counselor on June 15, 2009 (Doc. 1-1, 2--5). By July 13, Menard Warden Donald Gaetz had seen and concurred with a grievance officer's recommendation that Johnson's grievance be denied (Doc. 1-1, 25). On December 1, 2009, IDOC Director Michael Randle signed a denial of Johnson's appeal to the IDOC (Doc. 1-1, 26).

Because it weighs heavily in the application of the facts in this case to governing legal standards, one particularly puzzling discovery matter deserves special mention.


In March 2011, Defendants Griswold and Hanna responded separately to Johnson's first request for admissions (Doc. 44, Doc. 46). Taking issue with their responses, Johnson asked the Court to order Griswold and Hanna to amend many of their responses or, alternatively, to deem them admitted (Doc. 51, Doc. 53). Magistrate Judge Williams found that Defendants did not explain what reasonable inquiries they made into matters for which they claimed to lack sufficient knowledge to admit or deny Johnson's requests (Doc. 68, 3). See FED.R.CIV.P. 36(a)(4) ("The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny."). Judge Williams granted Johnson's motion in part, ordering Griswold and Hanna each to amend sixteen responses or face the possibility of "certain matters being deemed admitted" (Doc. 68, 4).

Bafflingly, neither Griswold nor Hanna complied with Judge Williams' Order. The consequences of that failure are not inconsequential. The factual propositions contained in Johnson's sixteen requests are admitted and, for the purposes of the instant motion, conclusively established. See FED.R.CIV.P. 36(b) ("A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.") (emphasis added); U.S. v. Kasuboski , 834 F.2d 1345, 1350 (7th Cir. 1987) ("Admissions made under Rule 36, even default admissions, can serve as the factual predicate for summary judgment.").

Here, therefore, the Court considers the following propositions to be true as they pertain to Griswold and Hanna:

* If followed, the IDOC's 2009 LVO menu would provide 2,800 or more calories on for 3 of every 35 days.

* If followed, the IDOC's 2009 LVO menu would not meet the USDA Dietary Guidelines of a healthful diet for an active 50-year-old male.

* The IDOC's 2009 LVO menu does not meet USDA Dietary Guidelines for vegetable servings for a physically active 50-year-old male.

* The IDOC's 2009 LVO menu does not meet USDA Dietary Guidelines for fruit servings for a physically active 50-year-old male.

* The IDOC's 2009 LVO menu does not meet USDA Dietary Guidelines for skim milk servings for a physically active 50-year-old male.

* The IDOC's 2009 LVO menu does not meet USDA Dietary Guidelines of servings of whole grains for a physically active 50-year-old male.

* Being forced to eat in a hurry increases the risk of and causes digestive system disorders.

* Large amounts of soy-based TVP reduce the body's ability to absorb calcium, magnesium, copper, iron and zinc.

* Soy-based TVP does not contain all the essential amino acids of a complete protein.

* Large amounts of soy-based TVP increase the risk of developing thyroid disorders, including thyroid cancer.

* Large amounts of soy-based TVP produce serious gastric distress and digestion problems including chronic constipation.

* Large amounts of soy-based TVP block the body's ability to absorb vitamins D and B12, thereby increasing the body's requirement for those vitamins.

* Large amounts of soy-based TVP increase the risk of developing osteoporosis.

* Soy-based TVP contains high levels of aluminum, which is toxic to the nervous system, kidneys and liver.

* Large amounts of soy-based TVP cause harmful medical symptoms including fatigue, lethargy and a constant feeling of being cold.

* Medical research has linked consumption of soy-based TVP with memory loss. DEFENDANTS'SUMMARY JUDGMENT MOTION

Defendants move for summary judgment under a number of theories. No material facts in the record, they say, can possibly show any Defendant violated the Eighth Amendment. A similar First Amendment argument is made: that Johnson has shown no facts that would lead a reasonable factfinder to conclude his First Amendment rights were violated. According to the motion, Johnson is entitled to no relief under RLUIPA, Johnson has failed to show any ongoing ...

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