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Bogard v. Smith

United States District Court, S.D. Illinois

May 22, 2014

ANTHONY BOGARD, # R-25141, Plaintiff,


J. PHIL GILBERT, District Judge.

Plaintiff, currently incarcerated at Lawrence Correctional Center ("Lawrence"), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. The action was filed on May 1, 2013, however, through a clerical error, the case was not brought to the attention of the undersigned Judge for a merits review until May 14, 2014. Plaintiff's claims concern alleged health and safety violations in the dietary department at Lawrence, and retaliatory actions directed at Plaintiff after he filed grievances over those problems.

More specifically, Plaintiff claims that while he was employed in the Lawrence dietary department, he witnessed health hazards including contaminated and undercooked food, unsanitary utensils, and discolored drinking/cleaning water (Doc. 1, p. 2). He complained to Defendants Waltz, Walker, Kohn (dietary supervisors) and Densmore (dietary manager) about these and other conditions which posed health and safety hazards to the prisoners. Rather than address the problems, Defendants Waltz and Walker attempted to stop Plaintiff from complaining. Defendant Walker threatened Plaintiff's job if he kept up the complaints (Doc. 1, p. 2).

Plaintiff ceased his verbal complaints, but began to file daily written grievances each time he observed an unsanitary or unsafe condition. Many grievances were never answered or returned. On February 10, 2012, Plaintiff saw another inmate worker cut his finger while opening a pan of coleslaw (Doc. 1, pp. 2-3). The inmate put his bleeding hand into the coleslaw and then continued to serve it to the prisoners. Plaintiff reported the incident to Defendant Smith, who took the inmate off serving duty, but continued to allow the contaminated food to be served to the prisoners in the chow line. Plaintiff filed a grievance over this incident, and it was not returned to him until after the time frame to appeal it had expired.

On February 20, 2012, another inmate heard Plaintiff talking about filing a grievance over the dietary conditions, and reported this to Defendants Waltz and Walker. Those two Defendants later confronted Plaintiff and threatened him with some unspecified retaliation if he filed a grievance. Plaintiff filed his grievance (No. 03-12-182) anyway, and it was denied. A few days later, Defendant Waltz instructed Plaintiff's housing unit correctional officer (C/O) not to allow Plaintiff out for work. Plaintiff then was issued a disciplinary report for failing to report for work. As a result, he was fired from the dietary job and incurred other disciplinary sanctions. Plaintiff in fact had never refused to work. Several other prisoners had attempted to get the C/O to allow him out, without success (Doc. 1, p. 3).

Plaintiff later asked Defendant Waltz why he had ordered the C/O not to allow him out to work. Defendant Waltz responded that Plaintiff had complained too much and he was not going to put up with it. When Plaintiff told Defendant Waltz he would write a grievance, Defendant Waltz threatened to write a disciplinary report on him. Plaintiff did file a grievance, but never got a response.

Plaintiff alleges that Defendants Godinez (Director of the Illinois Department of Corrections - IDOC) and Hodge (Lawrence Warden) should be held responsible for the dietary supervisors' failure to remedy the health/safety hazards, and claims that they have "established a custom or practice of health and safety hazards in the dietary at Lawrence" (Doc. 1, p. 4). Further, they failed to investigate or require the grievance officer to investigate and review video evidence after Plaintiff filed his grievance over the retaliatory action taken by Defendant Waltz.

Plaintiff seeks injunctive relief and damages for the Defendants' deliberate indifference to the serious health risks posed by the unsanitary dietary conditions, as well as for retaliation and intentional infliction of emotional distress (Doc. 1, pp. 5-6).

Merits Review Pursuant to 28 U.S.C. § 1915A

Under § 1915A, the Court is required to conduct a prompt threshold review of the complaint, and to dismiss any claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from an immune defendant.

Accepting Plaintiff's allegations as true, the Court finds that Plaintiff has articulated the following colorable federal causes of action, which shall receive further review:

Count 1: Eighth Amendment claim against Defendants Waltz, Walker, Kohn, Densmore, and Smith, who refused to remedy unsanitary and hazardous conditions in the Lawrence dietary department, with deliberate indifference to the serious risks to Plaintiff's health and safety from contaminated food and water;

Count 2: First Amendment claim against Defendant Waltz for causing Plaintiff to lose his dietary job and incur disciplinary consequences, in retaliation for Plaintiff's complaints and grievances against Defendant Waltz and other dietary staff.

In addition, Plaintiff has articulated the following state law claim which shall receive further review pursuant to the Court's supplemental ...

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