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Harriss v. Butler

United States District Court, S.D. Illinois

February 14, 2018

LARRY G. HARRIS, Plaintiff,
v.
KIMBERLY BUTLER, R. HARRINGTON, SANDRA FUNK, LOYD HANNA, JIM WINTERS, WARDEN FLAGG, SUSANNE GRISWALD-BAILEY, DR. SHEARING, M. ATCHISON, and BRAD J. ROBERT, Defendants.

          ORDER

          Reona J. Daly United States Magistrate Judge

         Plaintiff Larry G. Harris, an inmate in the custody of the Illinois Department of Corrections (“IDOC”), filed this action pursuant to 42 U.S.C. § 1983 alleging deprivations of his constitutional rights. Plaintiff alleges he was transferred from a medium security facility to a maximum security facility in retaliation for requesting his medically-prescribed, non-soy diet and engaging in First Amendment activity. Plaintiff also alleges his requests for a non-soy diet were refused, and he was denied a low bunk permit and medications that had been prescribed to treat a rash on his face. The only claims that remain pending[1] are against Defendant Dr. Shearing for retaliation, conspiracy, and deliberate indifference for denying Plaintiff his prescribed non-soy diet[2].

         Defendant Robert Shearing, M.D. filed a Motion for Summary Judgment on October 27, 2017 (Doc. 239). Plaintiff filed his response on December 5, 2017 (Docs. 247-248). For the reasons set forth below, the Motion is GRANTED.

         Background

         Harris' claims against Dr. Shearing concern his alleged failure to prescribe him a non-soy diet while he was incarcerated at Menard Correctional Center (“Menard”). Harris asserts that he suffers from Hashimoto's Thyroditis[3] (see Deposition of Larry Harris, Doc. 240-4, p. 6). His condition causes him to suffer from hypothyroidism, which causes him chronic constipation, severe bowel bleeding, hemorrhoids, low heart rate, and night sweats (Id.). Harris' medical records indicate he was prescribed Synthroid to manage his hypothyroidism (Affidavit of Robert Shearing, M.D., Doc. 240-2, ¶¶ 9, 12-14; see Plaintiff's Medical Records, Doc. 240-1, pp. 6, 8, 13, 16). It is undisputed that Harris does not suffer from a soy allergy; however, he asserts that eating soy aggravates his thyroid gland, which exacerbates his disease (Id. at 30). For this reason, Harris has often sought a soy diet while incarcerated at IDOC facilities (Id. at 8). Harris testified that he received a soy diet while incarcerated at Pinckneyville and Lawrence Correctional Centers, but Dr. Shearing denied his requests for a soy diet while he was at Menard from January 28, 2013 to February 6, 2013, and again from June 7, 2013 to July 25, 2013, when the Assistant Warden of Programs directed that he be provided a soy-free diet as an “administrative move” (Doc. 240-4 at 32, 34; Doc. 240-2 ¶ 24; see Doc. 240-1 at 22 and Doc. 248-1 at 3).

         In particular, Harris testified that while on a writ at Menard from January 28, 2013 to February 6, 2013, he saw Dr. Shearing on one occasion (Doc. 240-4 at 32). Harris told Dr. Shearing that he needed a non-soy diet and asked him to look at his medical records and internet research regarding his condition and its relation to soy (Id. at 32, 34). Dr. Shearing refused to look at the internet research and told Harris that they did not offer non-soy diets at Menard, but he would treat him when he became sick from the soy (Id. at 32). As a result, Harris had to refuse his food trays during this brief stay (Doc. 248-3 at 2-3).

         Harris asserts that after he returned to Menard on June 7, 2013, Dr. Shearing refused to see him (Id. at 32). Sometime after his transfer, Harris explains he ate some soy to demonstrate he would get sick and was seen by medical staff (Doc. 248-3 at 3). According to Harris' medical records, he saw a nurse on July 10, 2013, to request a non-soy diet (Doc. 240-2 at ¶ 20; see Doc. 240-1 at 19). Harris self-reported that he had allergic reactions requiring hospitalization with the ingestion of soy products (Id.). The nurse then referred Harris to the MD call line to discuss his request for a non-soy diet (Id.). Harris attests that he was placed on Dr. Shearing's call line, but Dr. Shearing refused to see him and refused to review his medical records[4] (Doc. 248-3 at 3). Dr. Shearing attests that he performed a jacket review of Harris' chart on July 18, 2013 (Doc. 240-2 at ¶ 21; see Doc. 240-1 at 20). Dr. Shearing noted that Harris requested a soy-free diet and, after reviewing his medical chart, determined that there was no objective evidence to support Harris' statements that he was allergic to soy or that he had been hospitalized due to the ingestion of soy products (Id.). Therefore, Dr. Shearing denied Harris' request for a non-soy diet (Id.).

         Harris saw Dr. Nwaobasi on July 18, 2013 and again requested a non-soy diet (Doc. 240-2 at ¶ 5; see Doc. 240-1 at 21). Dr. Nwaobasi noted there was no clinical lab data to confirm Harris' alleged soy allergy, and referred Harris to be seen by the Medical Director (Dr. Shearing) (Id.). Harris attests that he never saw Dr. Shearing while at Menard from June 7, 2013 to May 14, 2014 (Doc. 248-3 at 3); however, Dr. Shearing attests, in corroboration with Harris' medical records, that he saw Harris on July 18, 2013, shortly after his exam with Dr. Nwaobasi (Doc. 240-2 at ¶ 23; see Doc. 240-1 at 21). Dr. Shearing states that he reviewed the medical records with Harris and explained to him that he tested negative for a soy allergy and, therefore, he denied his request for a soy-free diet (Id.).

         Harris attests that in June and July 2013 he drafted numerous letters to Dr. Shearing requesting a non-soy diet, but he never received a response (Doc. 240-4 at 34; Doc. 248-3 at 3). Although Harris never received a response to his letters, he testified that a medical technician came to his cell in August 2013 and told him to “stop putting in for sick call, Dr. Shearing ain't [sic] going to treat you, stop writing him” (Doc. 240-4 at 35).

         Summary Judgment Standard

         Summary judgment is appropriate only if the moving party can demonstrate “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986); see also Ruffin-Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). The moving party bears the initial burden of demonstrating the lack of any genuine issue of material fact. Celotex, 477 U.S. at 323. Once a properly supported motion for summary judgment is made, the adverse party “must set forth specific facts showing there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017) (quoting Anderson, 477 U.S. at 248).

         In assessing a summary judgment motion, the district court views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013) (citation omitted). The Seventh Circuit has remarked that summary judgment “is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Steen v. Myers et. al, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted)).

         Discussion

         Count ...


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