United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE.
case was severed from Gakuba v. Swells et al., No.
19-cv-01081-SMY, on November 19, 2019. (Doc. 1). It contains
the claim designated as Count 6 in the original case,
described as an Eighth Amendment deliberate indifference
claim against Mr. Henderson for refusing to place Gakuba on a
no-seafood diet despite his allergies. Along with Count 6,
Gakuba's Motion for Equitable Relief requesting a
temporary restraining order and preliminary injunction was
filed in this case. (Doc. 5). Gakuba was given until January
23, 2020, to notify the Court whether he wished to proceed
with this action. (Doc. 12). On December 30, 2019, Gakuba
filed a First Amended Complaint, along with another motion
requesting emergency injunctive relief. (Docs. 13 and 14).
The Court construes these filings as signifying that he
wishes to proceed with this lawsuit, (see Doc. 13,
p. 2), and therefore, the First Amended
Complaint is now Court for preliminary review
pursuant to 28 U.S.C. § 1915A.
Section 1915A, the Court is required to screen prisoner
complaints to filter out non-meritorious claims. See
28 U.S.C. § 1915A(a). Any portion of a complaint that is
legally frivolous, malicious, fails to state a claim upon
which relief may be granted, or asks for money damages from a
defendant who by law is immune from such relief must be
dismissed. 28 U.S.C. § 1915A(b). At this juncture, the
factual allegations of the pro se complaint are to
be liberally construed. Rodriquez v. Plymouth Ambulance
Serv., 577 F.3d 816, 821 (7th Cir. 2009). Because Gakuba
also seeks emergency injunctive relief, (Doc. 14), the Court
will take up this matter without delay. See Wheeler v.
Wexford Health Sources, Inc., 689 F.3d 680 (7th Cir.
First Amended Complaint
alleges the following in the First Amended Complaint (Doc.
13) and Motion for Equitable Relief (Doc. 5): Gakuba,
currently in custody at Vienna Correctional Center
(“Vienna”), has a documented seafood allergy.
(Doc. 13, p. 2; Doc. 5, p. 1). Upon his arrival at Vienna, he
spoke with the Dietary Supervisor, Henderson, about his
seafood allergy. (Doc. 13, p. 3). Gakuba was placed on a
kosher diet, which includes the options of prepackaged turkey
breast; chicken breast, Salisbury steak, spaghetti, or fish
fillet. (Id. at p. 4). On November 1, 2019, he was
served fish for two successive days. (Doc. 5, p. 1). Gakuba
met with Nurse Practitioner Smith regarding his allergy, who
issued an order to the Vienna dietary services to stop
serving him fish. (Id.). He continued, however, to
receive the fish option at meals. (Id.). Gakuba met
with Smith again, who told him that Healthcare Director
George, with the agreement of Dr. Birch, overruled
Smith's order. (Id. at p. 2). Gakuba sought to
meet with John Doe, the Dietary Director. John Doe told
Henderson to show Gakuba the Illinois Department of
Corrections (“IDOC”) regulations. (Doc. 13, pp.
3-4). Gakuba continues to be served seafood three to four
times a week. (Id. at p. 2). Henderson has told him
that he will not stop serving him seafood because of labor
costs in food preparation. (Id. at p. 3).
filing this lawsuit, Henderson began to retaliate against
Gakuba and gave him spoiled juices, filthy lettuce, rotten
apple, waterlogged bagels, smashed crackers, and once a
spider in his cereal. (Id. at pp. 4-5). Henderson
also threatened to file false disciplinary tickets against
him. (Id. at p. 5).
includes Vienna Prison and IDOC in his list of defendants,
but both Defendants will be dismissed with prejudice. Gakuba
cannot maintain his suit against the IDOC, because it is a
state government agency. The Supreme Court has held that
“neither a State nor its officials acting in their
official capacities are ‘persons' under §
1983.” Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71 (1989). See also Wynn v.
Southward, 251 F.3d 588, 592 (7th Cir. 2001);
Billman v. Ind. Dep't of Corr., 56 F.3d 785, 788
(7th Cir. 1995).
the Vienna Correctional Center, which is a division of the
Illinois Department of Corrections, is not a
“person” within the meaning of the Civil Rights
Act, and is not subject to a Section 1983 suit. See
Will, 491 U.S. at 71.
Court also notes that in the First Amended Complaint, Gakuba
makes the claim that Defendants were decision “makers
[with] authority to overrule subordinate malfeasance.”
(Doc. 13, p. 5). Wardens and administrators cannot be held
liable for the unconstitutional acts of another person under
their authority. The doctrine of respondeat superior
(supervisory liability) is not applicable to Section 1983
actions. Sanville v. McCaughtry, 266 F.3d 724, 740
(7th Cir. 2001) (citations omitted). To the extent Gakuba is
claiming that Defendants are liable based on their
supervisory position, such claims are dismissed with
on the allegations in the First Amended Complaint, the Court
designates the following Counts:
Count 1: Eighth Amendment deliberate
indifference claim against Henderson, John Doe Dietary
Director, Greta Smith, Penny George, and Dr. Birch for
refusing to place Gakuba on a no-seafood diet despite his
Count 2: Conspiracy claim against Henderson,
John Doe Dietary Director, Greta Smith, Penny George, Dr.
Birch, Serina Lane, Sarah Robertson, Matthew Swells, Travis
Bayler, and Rob Jeffrys for conspiring to violate
Gakuba's Eighth Amendment and Fourteenth Amendment rights
and to commit gross negligence by denying his grievances.
Count 3: Fourteenth Amendment equal
protection claim against Henderson, John Doe Dietary
Director, Greta Smith, Penny George, and Dr. Birch.
Count 4: Eighth Amendment cruel and unusual
punishment claim against Henderson, John Doe Dietary
Directory, Greta Smith, Penny George, and Dr. Birch for
serving Gakuba seafood three to four times a week resulting
in him missing meals and causing malnourishment.
Count 5: Negligence claim in violation of
Illinois state law against Henderson, John Doe Dietary
Director, Greta Smith, Penny George, and Dr. Birch for
serving Gakuba seafood.
Count 6: Intentional infliction of emotional
distress claim in violation of Illinois state law against
Henderson, John Doe Dietary Directory, Greta Smith, Penny
George, and Dr. Birch.
Count 7: First Amendment claim against
Henderson, John Doe Dietary Director, Serina Lane, Sarah
Robertson, and Matthew Swells for retaliating against Gakuba
for filing lawsuits.
parties and the Court will use this designation in all future
pleadings and orders, unless otherwise directed by a judicial
officer of this Court. Any claim that is mentioned in
the Complaint but not addressed in this
Order is considered dismissed without prejudice
as inadequately pled under the
Twombly pleading standard.
prevail on a claim of deliberate indifference to a serious
medical need, a plaintiff must first show that his condition
was “objectively, sufficiently serious” and that
the “prison officials acted with a sufficiently
culpable state of mind.” Greeno v. Daley, 414
F.3d 645, 653 (7th Cir. 2005) (citations and quotation marks
omitted); see also Gayton v. McCoy, 593 F.3d 610,
620 (7th Cir. 2010).
not entirely clear at this point whether Gakuba suffers from
a serious medical condition, as he has not included any
details regarding his allergic condition such as necessary
medication or symptoms and reactions he experiences when he
ingests seafood. Construing the First Amendment Complaint
liberally in Gakuba's favor, however, the Court finds
that Count 1 will proceed against: (1) Henderson who rejected
Gakuba's request for a no-seafood diet and continued to
serve him seafood meals; (2) John Doe Dietary Directory for
disregarding the dietary order; (3) Healthcare Directors
George and Dr. Birch who overturned Nurse Practitioner
Smith's dietary order; and (4) Nurse Practitioner Smith