United States District Court, S.D. Illinois
LARRY G. HARRIS, Plaintiff,
KIMBERLY BUTLER, R. HARRINGTON, SANDRA FUNK, LOYD HANNA, JIM WINTERS, WARDEN FLAGG, SUSANNE GRISWALD-BAILEY, DR. SHEARING, M. ATCHISON, and BRAD J. ROBERT, Defendants.
J. Daly United States Magistrate Judge
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 are against Defendant Dr. Shearing for
retaliation, conspiracy, and deliberate indifference for
denying Plaintiff his prescribed non-soy diet.
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.
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 (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).
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).
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 (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
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
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).
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).
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)).