United States District Court, S.D. Illinois
JAMES MUNSON, Inmate No. N95249 Plaintiff,
ROBERT SHEARING, MICHAEL NELSON, JOHN TROST, RICHARD HARRINGTON, WEXFORD HEALTH SOURCES, INC., and STEPHEN RITZ, Defendants.
MEMORANDUM AND ORDER
Michael J. Reagan United States District Judge.
to 42 U.S.C. § 1983, pro se Plaintiff, now
represented by counsel, filed his complaint alleging claims
of retaliation and deliberate indifference to medical needs.
Specifically, Plaintiff's complaint alleges that
Defendant Shearing retaliated against Plaintiff for filing a
2011 lawsuit by denying his requests for medical care in
2013-14 (Count 1), that all Defendants deprived Plaintiff of
a nutritionally adequate diet (Count 2), that all of the
Defendants were deliberately indifferent to Plaintiff's
serious medical needs by refusing to diagnose or treat
Plaintiff for a soy allergy (Count 3), and that Defendant
Trost was deliberately indifferent in failing to address
Plaintiff's concerns regarding possible food poisoning
for nearly fifty days (Count 4).
matter is currently before the Court on two motions for
summary judgment. Defendants Shearing, Ritz, Trost, and
Wexford Health Sources, Inc. (hereinafter
“Wexford”) first filed a motion for summary
judgment (Docs. 92 and 93). Plaintiff has filed a response to
that motion (Doc. 107) and Defendants have filed a reply
(Doc. 112). Defendants Harrington and Nelson have also filed
a motion for summary judgment (Doc. 100) which Plaintiff has
filed a response to (Doc. 110). The two Defendants have also
filed a reply to that motion (Doc. 116). Based on the
following, the Court GRANTS IN PART AND DENIES IN PART the
medical Defendants' motion for summary judgment (Docs. 92
and 93) and GRANTS the motion for summary judgment (Doc. 100)
filed by Harrington and Nelson.
filed his pro se complaint on May 9, 2014 alleging
claims of retaliation and deliberate indifference related to
his concerns regarding soy in his diet (Doc. 1).
Specifically, Plaintiff believes that he is allergic to soy
and the medical Defendants have refused to diagnose or treat
his condition in part due to Wexford's policies of
keeping costs low (Doc. 6, p. 2). Plaintiff also alleges that
Defendant Harrington, warden at Menard Correctional Center,
knew about Plaintiff's complaints regarding his
inadequate healthcare but did nothing to rectify the
situation (Id. at p. 4-5). Plaintiff further alleges
that Medical Technician Nelson overheard Defendant Shearing
tell Plaintiff he was not going to provide him with a
soy-free diet because Plaintiff filed a lawsuit, but Nelson
did nothing to rectify the situation (Id. at p. 3).
claims that he suffers from a possible soy allergy. He has
been complaining about abdominal issues since at least May 8,
2007 when he received an ultrasound for abdominal issues and
was diagnosed with gall stones and possible peptic ulcer
disease (Doc. 93-2, p. 1). Subsequently, Plaintiff had his
gallbladder removed (Doc. 93-3, p. 4). Plaintiff also had a
sigmoidoscopy in 2010 due to gastrointestinal issues (Doc.
93-2, p. 2).
previously asked for a change in diet in 2011 and Dr. Fahim
informed Plaintiff that IDOC did not offer an alternative
diet for soy (Doc. 93-2, p. 3). Menard, however, does have a
soy/T.V.P. free diet option for inmates and approval for said
diet has to come from an inmate's treating physician
(Doc. 107-16, p. 3; 107-17, p. 6). Since at least August 2006
IDOC does not recognize a no-soy diet, but if there is a
documented allergy, a memo with the offending foods is to be
provided to dietary (Doc. 107-18, p. 4). Such meals are only
provided to an inmate when deemed medically necessary by a
treating physician (Doc. 107-19).
saw Dr. Shearing on May 31, 2013 for abdominal complaints
(Doc. 93-2, p. 26). Michael Nelson was present in the room on
that date (Doc. 100-2, p. 38-39). Nelson took his temperature
and blood pressure (Id. at p. 39). Plaintiff
informed Shearing of stomach pains and told him he was on
Konsyl, a fiber supplement (Id.). Plaintiff told him
he had constant diarrhea and was going to the restroom 3-4
times a day (Id. at p. 39-40). Plaintiff requested
both a soy-free diet and an allergy test, which Shearing
denied (Id. at p. 40). Plaintiff testified that
Shearing told Plaintiff he would not give him anything
because Plaintiff filed his complaint and should get the
Court to make that order (Id. at p. 40-41). Nelson
was present in the room during the conversation but did not
participate in the conversation; he only wrote down notes
(Id. at p. 41). Plaintiff testified that even though
Nelson was present and knew the seriousness of
Plaintiff's needs, Nelson did nothing nor does he believe
that Nelson reported Shearing's comments to a higher
authority (Id. at p. 42). Nelson testified that he
did not observe any activity that would require reporting on
that date (Doc. 100-10, p. 2). Shearing continued
Plaintiff's prescription for Fibercon as Plaintiff
indicated that it was helping (Doc. 93-2, p. 26).
6, 2013 Plaintiff met with telemedicine doctor Dr. Jeremy
Young for Plaintiff's HIV (Doc. 107-1, p. 1; 107-2).
Plaintiff complained about chronic diarrhea and abdominal
pain which he believed was caused by soy in his diet (Doc.
107-1, p. 1). Plaintiff had no side-effects to his HIV
medication but complained that the soy in his diet caused him
diarrhea 3-4 times a day but that when he ate food solely
from the commissary the symptoms went away (Doc. 107-2).
Young deferred any change in his diet to IDOC staff but noted
that if Plaintiff's complaints were true that his stomach
issues appeared to be related to his diet (Id.). He
offered Imodium which Plaintiff declined because it had not
helped him in the past (Id.).
24, 2013 Plaintiff met with Nurse Moldenhauer indicting that
he was experiencing cramping and diarrhea and requested a soy
allergy test (Doc. 93-2, p. 31). Moldenhauer told him she
could only refer him to Dr. Shearing, but an x-ray was
ordered for the next day (Id.). The x-ray showed a
moderate amount of stool in the colon associated with
constipation (Doc. 93-2, p. 32). Plaintiff also had a blood
test on July 15, 2013 for H.pylori which came back negative
again saw Young on September 12, 2013 and complained about
constant abdominal pain and diarrhea 3-8 times per day (Doc.
107-6). Plaintiff noted that he was suffering from weight
loss and sought a dietary supplement (Id.). Young
noted that if Plaintiff's statements were true that his
condition seemed to be related to his diet (Id.). He
prescribed Ensure three times per day but noted that he would
not normally manage an inmate's diet and that medical
staff could contact him if the request was unreasonable
(Id.). Young noted that a trial of Ensure seemed
reasonable given Plaintiff's complaints of diarrhea and
the fact that Plaintiff lost seven pounds (Id.).
Plaintiff testified that he was never given a dietary
supplement (Doc. 107-1, p. 2).
was seen by another telemedicine doctor, Dr. Mahesh Patel,
for his HIV on December 9, 2013 (Doc. 107-7; 107-8).
Plaintiff noted his abdominal issues and diarrhea (Doc.
107-7). He also indicated that he had weight loss
(Id.). Patel noted that his diarrhea and weight loss
were concerning and noted the weight loss was most likely due
to Plaintiff avoiding all foods with soy (Id.).
Patel indicated that a soy allergy test should be considered
but ultimately deferred to medical staff at the prison as
Plaintiff's stomach issues were not related to his HIV
saw Dr. Trost on April 1, 2014 for a cough and diarrhea (Doc.
93-2, p. 15). Trost ordered blood work and a stool sample
(Id.). Those tests came back negative for C. diff
infection (Id. at p. 16). Plaintiff was seen again
by Trost on September 5, 2014 for stomach cramps and diarrhea
(Doc. 93-2, p. 17). Trost prescribed Bentyl and Fibercon
was seen again by Dr. Patel on September 26, 2014 (Doc.
107-11). Patel noted that Plaintiff had lost fifteen pounds
since July (Id.). Patel requested twice monthly
weight checks and deferred a request for a soy allergy test
to Plaintiff's medical providers at the prison
Ritz denied a request for soy allergy test after a collegial
review between him and Dr. Trost because Plaintiff's
commissary list included items that contained soy (Doc.
107-12). Ritz ordered that observation be continued and noted
that Trost may test for celiac disease if symptoms continued
(Id.). Plaintiff received a blood test for celiac
disease which came back negative (Doc. 107-13). Another test
for H. pylori on November 3, 2014 also came back negative
medical defendants also admitted facts in their answer to the
complaint (Doc. 30). Specifically, the medical defendants
admitted the following allegations:
• Wexford strict policies and practice resulted in
violating Plaintiff's constitutional rights and allowed
Plaintiff to be neglected and out right denied medical
treatment (Doc. 1-2, ...