The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MITCHELL MORROW, )
)
Plaintiff, )
)
vs. ) Case No. 18-cv-908-SMY
)
JOHN BALDWIN, )
SALVIDOR A. GODINEZ, )
MICHAEL P. RANDLE, )
ROBERT MUELLER, )
GLADYSE C. TAYLOR, )
MATTHEW POGUE, and )
RICHARD MAUTINO,1 )
)
Defendants. )
MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Mitchell Morrow, an inmate in the custody of the Illinois Department of
Corrections, filed this action pursuant to 42 U.S.C. § 1983 claiming Defendants demonstrated
deliberate indifference to his health and safety by serving juice drinks containing ingredients that
could produce benzene as a byproduct. This matter is now before the Court on Defendants’ Motion
for Summary Judgment (Doc. 72), Plaintiff’s request for additional discovery (Doc. 81), and
Plaintiff’s Motion to Strike exhibits filed by Defendants (Doc. 82). For the following reasons,
Plaintiff’s request for additional discovery is DENIED, Plaintiff’s Motion to Strike is DENIED,
and Defendants’ Motion for Summary Judgment is GRANTED.
1 The Clerk of Court is DIRECTED to correct the docket sheet to reflect the complete and correct spellings
of Defendants’ names.
Plaintiff’s Request for Additional Discovery
Five months after the close of discovery and three months after Defendants filed their
motion for summary judgment, Plaintiff filed an Affidavit requesting additional discovery. (Doc.
81). He contends that he needs to submit discovery to Defendants Randle and Mautino in order to
dispute their Declarations filed in support of summary judgment, wherein they deny any
knowledge of a potential issue with the ICI produce juice. (See 73-3, p. 1; 73-4, p. 2).
Federal Rule of Civil Procedure 56(d) permits a court to delay consideration of a motion
for summary judgment and order additional discovery before ruling if the non-movant
demonstrates that “it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(d).
The non-movant must “state the reasons why [they] cannot adequately respond to the motion for
summary judgment without further discovery.” Deere & Co. v. Ohio Gear, 462 F.3d 701, 706 (7th
Cir.2006). Plaintiff has not provided reasons sufficient to justify re-opening discovery and
delaying consideration of Defendants’ motion for summary judgment. He does not explain what
additional discovery could yield evidence to dispute Defendants’ claims of lack of knowledge. His
request is, therefore, denied.
Motion to Strike
Plaintiff requests that the Court strike several exhibits to Defendants’ Motion. Defendants
moved for summary judgment on September 16, 2019, the deadline for filing dispositive motions.
(Doc. 72). Plaintiff seeks to have those exhibits stricken as untimely and to have Defendants’
affidavits stricken because they bear electronic signatures. Additionally, Plaintiff argues that the
Court should strike two pages of his deposition because he discusses his claims against Defendant
Mautino on those pages, and Mautino did not enter an appearance in this case until after the
deposition took place.
Plaintiff’s arguments are unavailing. There is no prohibition against electronic signatures
on affidavits, and the Court will not disregard deposition testimony solely because it mentioned a
defendant who had yet to appear. Similarly, Plaintiff has not demonstrated prejudice related to the
exhibits filed one day after the dispositive motion deadline. Therefore, his Motion to Strike is
DENIED.
Motion for Summary Judgment
Background
At all times relevant to his Complaint, Plaintiff Mitchell Morrow was an inmate in the
custody of the Illinois Department of Corrections (“IDOC”) and was incarcerated at several
different IDOC facilities. He alleges that juice drinks served to IDOC inmates contain ascorbic
acid (Vitamin C) and sodium benzoate, which when combined, can produce benzene, a known
carcinogen. Plaintiff was allowed to proceed on the following claims based on the Court’s review
of his Amended Complaint pursuant to 28 U.S.C. § 1915A (Docs. 51, 52):
Count 1: Eighth Amendment claim against Matthew Pogue and Richard
Mautino for deliberate indifference to the present and future health
risks to Plaintiff from consuming juice drinks that are produced by
Illinois Correction Industries (“ICI”) and contain ingredient that
may produce benzene;
Count 2: Eighth Amendment claim against former IDOC Directors and
Acting Directors John Baldwin, Salvador Godinez, Gladyse Taylor,
and Michael Randle for deliberate indifference to the present and
future health risks to Plaintiff from consuming ICI-produced juice
drinks that contain ingredients that may produce benzene; and
Count 3: Eighth Amendment claim against Defendant Robert Mueller (the
warden at Centralia Correctional Center) for deliberate indifference
to the present and future health risks to Plaintiff from consuming
ICI-produced juice drinks that contain ingredients that may produce
benzene.
Defendant Richard Mautino has been the Assistant CEO of ICI since December 2011 and
Defendant Matthew Pogue has been the Regional Food and Beverage Manager for the company
since November 2017. Plaintiff claims that he was served and consumed ICI-produced 100% juice
from 2008 through February 2017. ICI produced the juice served to IDOC inmates during that
time with the exception of a 6-month period in 2016 during which IDOC contracted with Prairie
Farms for juice purchases. IDOC did not serve 100% juice to inmates before 2008.
On January 15, 2008, AFSCME Council 31, the union for correctional officers, wrote to
IDOC officials about the planned switch from juice drink to 100% juice:
As you know, the reason IDOC has historically served juice drink instead of 100%
juice is because of the hooch-making capabilities of 100% juice. At [a December
4, 2007] meeting you responded by telling the Union that the Department intended
to incorporate the additive sodium benzoate into the 100% juice[,] which would
have the chemical impact of precluding fermentation.
The Union shared with you information from the Food and Drug Administration
regarding the production of the byproduct benzene when combining ascorbic acid
and sodium benzene [sic]. While the practice is not prohibited by the FDA, it is
discouraged.
The Union notified IDOC that we wished to take random samples from
Correctional Industries, where the juice is processed, and send them to a laboratory
at the Union’s expenses to insure that the level of benzene present did not exceed
Federal limits.
(Doc. 73-7, p. 1).
IDOC opted to test the ICI juice products and entrusted Prairie Analytical Systems to
perform the tests. (Doc. 73-6, 73-7). No benzene was detected in any of the juice flavors except
for the 100% grape juice which showed the presence of benzene in the amount of 3.10 parts per
billion (ppb). (Doc. 73-6, p. 4). Even though the amount of benzene in the grape juice was below
the EPA’s threshold for potable drinking water of 5.00 ppb, IDOC decided to discontinue
production of the grape juice and it was not served to inmates. (Doc. 73-7, p. 5).
Plaintiff claims that 100% grape juice is still served and points to the presence of grape
juice in a fruit juice blend served to inmates. (Doc. 80, p. 50-51). The fruit juice blend was tested
in 2008 and no benzene was detected. (Doc. 73-6, p. 4). IDOC memoranda regarding milk and
juice pricing do not include grape juice among the listed juices delivered by ICI at various times
in 2014 and 2016. (See Doc. 80, p. 45-46, 49).
Generally, Plaintiff consumed one box of juice per day until July 2017, but he would drink
five to ten juice boxes each day when he worked in the dietary units.2 In 2017, another inmate
brought a 1991 FDA article about benzene as a byproduct of ascorbic acid and sodium benzoate
to his attention. He then stopped drinking the juice served to inmates. (Doc. 73-1, p. 14-15).
During his deposition, Plaintiff testified that he experienced occasional vomiting and
dizziness after drinking the ICI-produced juice. He was diagnosed with high blood pressure in
2010 and acknowledges being told by healthcare staff that his dizziness could be caused by the
condition. (Doc. 73-1, p. 19). He also experienced diarrhea but did not document how often. He
sometimes had a rapid heartbeat, for which the medical staff would adjust his blood pressure
medication. Plaintiff received medical treatment for anemia between 2010 and 2012 and again in
early 2019. No medical professional has told Plaintiff that any of his symptoms were related to
drinking the ICI-produced juice. (Doc. 73-1, p. 33).
Discussion
Summary judgment is appropriate “if the movant shows 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). A genuine issue of material fact remains “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Accord Bunn v. Khoury Enterpr., Inc., 753 F.3d 676, 681-682 (7th Cir. 2014). When
2 Before being transferred to Centralia Correctional Center, Plaintiff worked in the dietary unit at Lawrence
and Menard Correctional Centers.
considering a motion seeking summary judgment, the Court views the facts in the light most
favorable to, and draws all reasonable inferences in favor of, the nonmoving party. See Anderson,
699 F.3d at 994; Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011).
The Eighth Amendment prohibition on cruel and unusual punishment forbids the
unnecessary and wanton infliction of pain. See Rhodes v. Chapman, 452 U.S. 337, 346
(1981)(citation omitted). To succeed on a claim related to conditions of confinement, a plaintiff
must establish both an objective and subjective element. See Grieveson v. Anderson, 538 F.3d
763, 775 (7th Cir. 2008). To satisfy the objective element, an inmate must show that the conditions
resulted in an unquestioned and serious deprivation of basic human needs such as food, medical
care, sanitation, or physical safety. See Rhodes, 452 U.S. at 347. In other words, the Eighth
Amendment “does not require prisons to provide prisoners with more salubrious air, healthier food,
or cleaner water than are enjoyed by substantial numbers of free Americans.” Carroll v. DeTella,
255 F.3d 470, 472 (7th Cir. 2001).
Satisfaction of the subjective component of an unconstitutional conditions of confinement
claim requires evidence sufficient to demonstrate that a defendant acted with deliberate
indifference to a substantial risk of serious harm to the inmate. See Farmer, 511 U.S. at 837, 842.
A plaintiff satisfies the deliberate indifference standard by showing that a prison official acted, or
failed to act, despite the official’s knowledge of a substantial risk of serious harm from the alleged
unconstitutional conditions. See Farmer, 511 U.S. at 842; Davidson v. Cannon, 474 U.S. 344,
347-348 (1986).
As specifically relevant to Plaintiff’s claims, prison officials must provide inmates with
“nutritionally adequate food that is prepared and served under conditions which do not present an
immediate danger to the health and well-being of the inmates who consume it.” Smith v. Dart,
803 F.3d 304, 312 (7th Cir. 2015) (quoting French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985)).
Plaintiff’s claim that the offending grape juice is served to inmates is unsupportable based on the
evidence in the record. First, the memoranda containing ICI’s juice pricing submitted by Plaintiff
do not show that IDOC purchased grape juice. Additionally, while Plaintiff alleges the presence
of grape juice in the fruit juice blend that is served to inmates, a test conducted on the juice in 2008
did not reveal the presence of benzene. While evidence suggests that the combination of ascorbic
acid and sodium benzoate can lead to the creation of benzene, absent evidence that benzene was
actually present in the ICI juice products, Plaintiff’s claims cannot survive summary judgment.
Plaintiff’s contention that the storage of the juice was so unsafe as to lead to the creation
of benzene as a byproduct also lacks evidentiary support in the record. There is no evidence that
the juice was stored improperly, other than the non-experts opinions of Plaintiff and other IDOC
inmates. Nor has Plaintiff produced any admissible evidence to support his claim of the creation
of benzene from the storage of the juice.3
Even when inferences are drawn in Plaintiff’s favor, there is no evidence from which a jury
could reasonably conclude that that the juice provided to IDOC inmates presented a serious
deprivation of a basic human need or that the juice was more dangerous than products provided to
the public at large. Plaintiff’s claim rests entirely on his personal beliefs without supporting
evidence in the record. Without sufficient evidence of the objective component of Plaintiff’s claim,
it does not survive summary judgment. Given this conclusion, it is not necessary for the Court to
address Defendants’ argument that they are entitled to qualified immunity with respect to
Plaintiff’s claims.
3 Plaintiff attached to his Response an article from liponaturals.com indicating that cans of soda that sat on
store shelves awaiting purchase had more benzene than other cans of soda due to the warmth during storage,
but the article is not substantive evidence that could support Plaintiff’s claim.
Conclusion
For the foregoing reasons, Plaintiff’s request for additional discovery (Doc. 81) is
DENIED, Plaintiff’s Motion to Strike (Doc. 82) is DENIED, and Defendants’ Motion for
Summary Judgment (Doc. 72) is GRANTED. Accordingly, the Clerk of Court is DIRECTED
to enter JUDGMENT in favor of Defendants John Baldwin, Salvador Godinez, Robert Mueller,
Matthew Pogue, Richard Mautino, Michael Randle, and Gladyse Taylor and against Plaintiff
Mitchell Morrow, and to close this case.
IT IS SO ORDERED.
DATED: July 29, 2020
s/ Staci M. Yandle_____
STACI M. YANDLE
United States District Judge