# Sims v. Thompson

> District Court, S.D. Illinois · March 31, 2021

URL: https://www.frixlaw.com/law-library/cases/10153437

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** March 31, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10153437

## How later opinions describe it (automated extraction)

- holding that to be properly considered a party, a defendant must be “specif[ied] in the caption”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

ARDAMIS DARRELL SIMS, #K-81548, )
)
Plaintiff, )
vs. ) Case No. 20-cv-336-MAB
)
SCOTT THOMPSON, W. HARRIS, )
DAVID HESS, JR., AFFTON HAGGARD, )
AMBER LOOS, J. SMITH, )
SHANE MERCIER, MS. DEMSAR, )
TRAVIS BAYLER, LT. MILLER, )
IDOC, CHALENE HALE, )
and ROBERT J. SAMOLINSKI, )
)
Defendants. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:
Plaintiff Ardamis Darrell Sims was an inmate of the Illinois Department of
Corrections (“IDOC”) incarcerated at Danville Correctional Center (“Danville”) at the
time he filed this lawsuit pursuant to 42 U.S.C. § 1983. He alleges deprivations of his
constitutional rights while he was confined at Pinckneyville Correctional Center
(“Pinckneyville”). (Doc. 10). Plaintiff was recently released from custody. (Doc. 12).
The Court dismissed Plaintiff’s original Complaint (Doc. 1) as duplicative of
another pending action1 and for failure to state a claim upon which relief may be granted.
(Doc. 9). Plaintiff’s First Amended Complaint is now before the Court for a preliminary

1 Sims v. Varel, et. al, Case No. 20-335-GCS, which is proceeding in this district on medical-care-
related claims.
merits review under 28 U.S.C. § 1915A,2 which requires the Court to screen prisoner
Complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). Any portion of the

Complaint that is legally frivolous, malicious, fails to state a claim for relief, or requests
money damages from an immune defendant must be dismissed. 28 U.S.C. § 1915A(b).
THE FIRST AMENDED COMPLAINT
Plaintiff makes the following allegations in the First Amended Complaint (Doc.
10): He was housed at Pinckneyville from March 29, 2018 to June 6, 2019. During that
time, he was fed moldy, contaminated, undercooked, and expired food in the dietary

department on several occasions, which made him sick. Plaintiff alerted Lt. J. Smith on
September 7, 2018 about moldy food on his tray, but Smith did nothing more than tell
Plaintiff he could dump out his tray. (Doc. 10-1, pp. 3-4).
Plaintiff filed a grievance that was delayed and denied by Counselor David Hess,
who falsely replied that moldy items and out-of-date donated food are not served at the

prison. (Doc. 10-1, p. 4). Food Supervisor W. Harris falsely denied the claims of
unsanitary kitchen practices in Plaintiff’s grievances, which included a broken
dishwasher and workers not wearing aprons or beard/hair nets. (Doc. 10-1, p. 5).
Administrative Review Board Acting Director Travis Bayler denied Plaintiff’s grievances
and referred him to health care to address his medical concerns. Id.

Hess, Bayler, Grievance Officer Shayne Mercier, and Counselor Amber Loos

2 The Court has jurisdiction to screen the Complaint in light of Plaintiff’s consent to the full
jurisdiction of a magistrate judge, and the limited consent by the Illinois Department of
Corrections to the exercise of magistrate judge jurisdiction as set forth in the Memorandum of
Understanding between this Court and the Illinois Department of Corrections.
mishandled Plaintiff’s grievances, causing them to be denied as untimely. (Doc. 10-1, pp.
6-7). Harris and Hess blamed Plaintiff’s illness on his failure to follow dietary

recommendations for treatment of H. Pylori symptoms, indicating they saw his medical
records without his permission. (Doc. 10-1, pp. 7-8).
Counselor Affton Haggard falsified a grievance response after Plaintiff
complained on May 22, 2019 about an undercooked and contaminated chicken patty that
made him extremely ill. (Doc. 10-1, pp. 8-9). Plaintiff was ill for half a year from the tainted
food. He filed a grievance with Counselor Chalene Hale over Haggard’s falsification of

reports, but Hale responded he could not grieve that issue.
Loos responded on April 8, 2019 to Plaintiff’s grievance that food trays were
contaminated with slimy grime and were falling apart, admitting that trays are being
replaced but denying the grievance. (Doc. 10-1, p. 9). Plaintiff also told Counselor Robert
Samolinski about the dirty trays. (Doc. 10-2, p. 1).

Plaintiff complained to Samolinski in March, June, and July 2019, that he was being
denied showers. (Doc. 10-1, p. 9). He claims he was “harass[ed] regularly” by being
denied showers, phone access, and dayroom and recreation access. (Doc. 10-2, p. 1).
Plaintiff does not identify the officers who were responsible for these denials, stating that
they did not wear name plates, or they put their nametag on a belt where they could not

be read. (Doc. 10-2, p. 1). Plaintiff asserts he was denied showers, recreation, and phones
because he filed grievances against officers for reading his mail. (Doc. 10-2, p. 2). Plaintiff
mentions C/O Bathom, C/O Ms. Johnson, and Major Adams in connection with this
claim, but does not include these individuals as Defendants herein. (Doc. 10-2, pp. 1-3).
Hess refused to deliver grievances to Plaintiff and refused to process his grievances.
Plaintiff wrote to Warden Scott Thompson about the harassment and denial of privileges,

but Thompson deemed the matter to be non-emergency. (Doc. 10-2, p. 2). Thompson and
Bayler denied his grievances on these issues. Id.
Plaintiff asserts that Defendants Hess, Haggard, Loos, Mercier, Hale, Thompson,
Bayler, Harris, Miller, Demsar, and Samolinski were all aware of the false, fabricated
reports that were used to deny his grievances and refused to address the problems in
dietary. (Doc. 10-1, p. 5). He asserts Eighth Amendment and retaliation claims against

them, as well as state law negligence and intentional infliction of emotional distress
claims. (Doc. 10-2, pp. 3-4). Plaintiff seeks monetary damages. (Doc. 10-2, p. 5).
PRELIMINARY DISMISSALS
The only allegations Plaintiff raises against Hess, Haggard, Loos, Mercier, Bayler,
and Hale are that these officials denied, mishandled, or provided false information in

response to his grievances over tainted food and unsanitary kitchen practices. The denial
or mishandling of a grievance does not amount to a constitutional violation. Owens v.
Hinsley, 635 F.3d 950, 953 (7th Cir. 2011) (“[T]he alleged mishandling of [a prisoner’s]
grievance by persons who otherwise did not cause or participate in the underlying
conduct states no claim.”); George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007). Because

these Defendants were only involved in processing Plaintiff’s grievances, the claims
against Hess, Haggard, Loos, Mercier, Bayler, and Hale are DISMISSED without
prejudice.
Plaintiff does not set forth any factual allegations against Lt. Miller and merely
states that he was aware of the false and fabricated reports that led to the denial of
Plaintiff’s grievances, and that he failed to address the problems in dietary. (Doc. 10-1, p.

5). This conclusory statement is insufficient to state a claim against Lt. Miller and he is
also DISMISSED without prejudice.
Plaintiff includes the IDOC as a Defendant and suggests the agency should be
liable because it employs the individual Defendants. (Doc. 10-1, p. 7; 10-2 p. 3). Regardless
of his theory of liability, Plaintiff cannot maintain a suit for money damages 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) (Eleventh Amendment bars suits against states in federal court for
money damages); Billman v. Ind. Dep’t of Corr., 56 F.3d 785, 788 (7th Cir. 1995) (state
Department of Corrections is immune from suit by virtue of Eleventh Amendment). The

IDOC is also dismissed from the action.
DISCUSSION
Based on the allegations in the First Amended Complaint, the Court designates
the following claims in this pro se action:
Count 1: Eighth Amendment deliberate indifference claim against
Harris, Demsar, Smith, Samolinski, and Thompson for
serving Plaintiff tainted food which caused him to become ill
and/or failing to correct the sanitation and food quality
problems after Plaintiff complained and/or filed grievances.

Count 2: First Amendment retaliation claim against Samolinski and
Thompson for depriving Plaintiff of privileges including
showers, phone access, recreation, and dayroom because
Plaintiff filed grievances against officers who read his mail.

Count 3: Illinois state law negligence and intentional infliction of
emotional distress claims based on the tainted food
complaints set forth in Count 1.

The parties and the Court will use these designations in all future pleadings and orders,
unless otherwise directed by a judicial officer of this Court. Any other claim that is
mentioned in the Complaint but not addressed in this Order should be considered
dismissed without prejudice as inadequately pled under the Twombly pleading
standard.3
Count 1
The Eighth Amendment prohibition on cruel and unusual punishment forbids
unnecessary and wanton infliction of pain, and punishment grossly disproportionate to
the severity of the crime. Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Gregg v.
Georgia, 428 U.S. 153, 173 (1976)). Prison conditions that deprive inmates of basic human
needs – food, medical care, sanitation, or physical safety – may violate the Eighth
Amendment. Rhodes, 452 U.S. at 346; see also James v. Milwaukee Cnty., 956 F.2d 696, 699
(7th Cir. 1992). In order to prevail on an Eighth Amendment deliberate indifference claim,
Plaintiff must show that the deprivation was objectively serious and created an excessive
risk to his health or safety, and that the defendant(s) knew of the risk of harm but acted

or failed to act despite that knowledge. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
According to Plaintiff’s factual allegations, only two Defendants (Manager/Food

3 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon
which relief can be granted if it does not plead “enough facts to state a claim that is plausible on
its face.”).
Supervisor Harris and Food Supervisor Demsar) were directly involved in food
preparation or management of the food service at Pinckneyville. Plaintiff has alleged

substantial harm (repeated and/or lengthy illness) related to food quality and kitchen
sanitation at Pinckeyville, sufficient at this stage to meet the objective component of a
deliberate indifference claim. If Harris and/or Demsar knowingly served tainted food to
Plaintiff or failed to take steps to mitigate the risk from outdated/unsafe food or
unsanitary kitchen practices, they could be found to be in violation of the Eighth
Amendment. Count 1 may therefore proceed against Harris and Demsar.

Plaintiff describes only one interaction with Lt. J. Smith regarding the food issue.
He showed Smith some moldy food on his tray and Smith gave Plaintiff permission to
dump out the tray and return to his seat. (Doc. 10-1, pp. 3-4). This single incident does
not amount to a serious deprivation of nourishment or a substantial threat to Plaintiff’s
health, and Smith’s mere observation of the moldy food is insufficient to impose liability

upon him. Lt. Smith is therefore dismissed from Count 1 and from the action.
Similarly, Plaintiff states that he told Counselor Samolinski about the
contaminated/dirty food trays. However, he does not indicate that he informed
Samolinski about the problem on more than one occasion, nor does he allege that
Samolinski had any responsibility for the issue other than addressing Plaintiff’s

grievance/complaint as a Counselor. (Doc. 10-1, pp. 2, 9; Doc. 10-2, p. 1). As noted above,
an official whose involvement is limited to responding to grievances does not become
responsible for the alleged constitutional violation that gave rise to the grievance. Owens,
635 F.3d at 953. Samolinski is also dismissed from Count 1.
The only connection Plaintiff makes between Warden Thompson and the tainted
food allegations is Thompson’s denial of Plaintiff’s grievances. This is insufficient to state

a constitutional claim and Count 1 is therefore dismissed against Thompson.
To summarize, Count 1 shall proceed only against Defendants Harris and Demsar.
Count 2
Prison officials may not retaliate against inmates for filing grievances, lawsuits, or
otherwise complaining about their conditions of confinement. See, e.g., Gomez v. Randle,
680 F.3d 859, 866 (7th Cir. 2012); Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt

v. Carter, 224 F.3d 607 (7th Cir. 2000). “A complaint states a claim for retaliation when it
sets forth ‘a chronology of events from which retaliation may plausibly be inferred.’”
Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000) (citation omitted).
Here, Plaintiff sets forth a chronology that could support a First Amendment
retaliation claim – he filed grievances accusing officials of reading his mail, and then

officers deprived him of showers and access to recreation and telephones. However,
Plaintiff’s statement of claim never identifies the officials who committed the retaliatory
acts, nor does he name the officials against whom he lodged the complaints which
allegedly triggered the retaliation. He must identify the people who retaliated and
include them as Defendants4 before this claim may proceed.

Plaintiff’s description of the alleged retaliation mentions C/O Bathom, C/O Ms.

4 Plaintiff may designate unknown Defendants as “John/Jane Doe” but must include descriptive
information (such as job title, shift worked, or location) to assist in the person’s eventual
identification.
Johnson, and Major Adams, however, he did not include these individuals as Defendants
in this action, nor did he make clear what actions they allegedly took against him. (Doc.

10-2, pp. 1-3). When parties are not listed in the caption, this Court will not treat them as
defendants, and any claims against them should be considered dismissed without
prejudice. See FED. R. CIV. P. 10(a) (noting that the title of the complaint “must name all
the parties”); Myles v. United States, 416 F.3d 551, 551-52 (7th Cir. 2005) (holding that to be
properly considered a party, a defendant must be “specif[ied] in the caption”).
The only Defendants mentioned in this section of the pleading are Samolinski and

Thompson. Plaintiff says he told Samolinski that he had been denied showers (Doc. 10-1,
p. 9). He wrote to Thompson describing the harassment and denial of privileges, but
Thompson denied the issues as non-emergency. (Doc. 10-2, p. 2). These facts demonstrate
that Samolinski and Thompson did not themselves engage in retaliation against Plaintiff,
but merely responded to his grievances/complaints – which does not amount to a

violation of his constitutional rights. Owens, 635 F.3d at 953. Thompson and Samolinski
are therefore dismissed from Count 2.
Because Plaintiff did not include as Defendants the officers who retaliated against
him, Count 2 will be dismissed without prejudice. Plaintiff may seek leave to submit yet
another amended complaint if he wishes to further pursue this claim. However, the

retaliation claim in Count 2 does not appear to be related to the tainted food claims in
Count 1. This means that if Plaintiff re-pleads Count 2 in this action, the Court may sever
that claim from this case into a new action, which would require a separate filing fee.
Count 3
Under Illinois law, in order to state a claim for negligence, a complaint must allege
facts to establish that the defendant owed the plaintiff a duty of care, breached that duty,

and that the breach was the proximate cause of the plaintiff’s injury. Thompson v. Gordon,
948 N.E.2d 39, 45 (Ill. 2011). Where a district court has original jurisdiction over a civil
action such as a § 1983 claim, it also has supplemental jurisdiction over related state law
claims pursuant to 28 U.S.C. § 1367(a), so long as the state claims “derive from a common
nucleus of operative fact” with the original federal claims. Wisconsin v. Ho-Chunk Nation,

512 F.3d 921, 936 (7th Cir. 2008). Because Count 1 for deliberate indifference survives
against Harris and Demsar, Plaintiff may also pursue his state law negligence claims
against these two Defendants based on the same facts underlying Count 1.
The tort of intentional infliction of emotional distress under Illinois law covers
only acts that are truly “outrageous,” that is, an “‘unwarranted intrusion ... calculated to

cause severe emotional distress to a person of ordinary sensibilities.’” Knierim v. Izzo, 174
N.E.2d 157, 164 (Ill. 1961) (quoting Slocum v. Food Fair Stores of Fla., 100 So. 2d 396 (Fla.
1958)). See Honaker v. Smith, 256 F.3d 477, 490 (7th Cir. 2001). The tort has three
components: (1) the conduct involved must be truly extreme and outrageous; (2) the actor
must either intend that his conduct inflict severe emotional distress, or know that there

is at least a high probability that his conduct will cause severe emotional distress; and (3)
the conduct must in fact cause severe emotional distress. McGrath v. Fahey, 533 N.E.2d
806, 809 (Ill. 1988). To be actionable, the defendant’s conduct “must go beyond all bounds
of decency and be considered intolerable in a civilized community.” Honaker, 256 F.3d at
490 (citing Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201, 211 (Ill. 1992)); Campbell v. A.C.
Equip. Servs. Corp., Inc., 610 N.E.2d 745, 749 (Ill. App. 1993). Whether conduct is extreme

and outrageous is judged on an objective standard, based on the facts of the particular
case. Honaker, 256 F.3d at 490.
If Plaintiff can prove that Harris and/or Demsar knowingly served dangerous
tainted or improperly prepared food, he may be able to prevail on the claim for
intentional infliction of emotional distress. At this early stage, this claim is not subject to
dismissal.

Count 3 may proceed against Harris and Demsar on the negligence and intentional
infliction of emotional distress state law claims.
DISPOSITION
IT IS HEREBY ORDERED that COUNT 2 is dismissed without prejudice.
Defendants THOMPSON, HESS, HAGGARD, LOOS, SMITH, MERCIER, BAYLER,

MILLER, HALE, and SAMOLINSKI are DISMISSED from this action without
prejudice. Defendant IDOC is DISMISSED from this action with prejudice.
IT IS FURTHER ORDERED that COUNTS 1 and 3 against W. Harris and Ms.
Demsar survive preliminary review pursuant to 28 U.S.C. § 1915A and shall proceed for
further consideration.

The Clerk of Court shall prepare for Defendants HARRIS and DEMSAR: (1) Form
5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6
(Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of
the Complaint, and this Memorandum and Order to Defendants’ place of employment
as identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service of
Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the

Clerk shall take appropriate steps to effect formal service on the Defendant, and the Court
will require the Defendant to pay the full costs of formal service, to the extent authorized
by the Federal Rules of Civil Procedure.
If a Defendant cannot be found at the work address provided by Plaintiff, the
employer shall furnish the Clerk with the Defendant’s current work address, or, if not
known, the Defendant’s last-known address. This information shall be used only for

sending the forms as directed above or for formally effecting service. Any documentation
of the address shall be retained only by the Clerk and shall not be maintained in the court
file or disclosed by the Clerk.
Defendants are ORDERED to timely file an appropriate responsive pleading to
the Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).

Pursuant to Administrative Order No. 244, Defendants need only respond to the issues
stated in this Merit Review Order.
Plaintiff is ADVISED that if judgment is rendered against him and the judgment
includes the payment of costs under 28 U.S.C. § 1915, he will be required to pay the full
amount of the costs. See 28 U.S.C. § 1915(f)(2)(A).

Plaintiff is REMINDED that he is under a continuing obligation to keep the
Clerk of Court and the opposing parties informed of any change in his address; the Court
will not independently investigate his whereabouts. This shall be done in writing and not
later than 7 days after a change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this
action for want of prosecution. See FED. R. CIV. P. 41(b).

Finally, based on the allegations in the Complaint, the Clerk of Court is
DIRECTED to ENTER the standard qualified protective order pursuant to the Health
Insurance Portability and Accountability Act.
IT IS SO ORDERED.
DATED: March 31, 2021

/s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge

Notice to Plaintiff
The Court will take the necessary steps to notify Defendants of your lawsuit and
serve them with a copy of your Complaint. After service has been achieved, Defendants
will enter an appearance and file an Answer to your Complaint. It will likely take at least
60 days from the date of this Order to receive Defendants’ Answer, but it is entirely
possible that it will take 90 days or more. When Defendants have filed an Answer, the
Court will enter a Scheduling Order containing important information on deadlines,
discovery, and procedures. Plaintiff is advised to wait until counsel has appeared for
Defendants before filing any motions, to give the Defendants notice and an opportunity
to respond to those motions. Motions filed before Defendants’ counsel has filed an
appearance will generally be denied as premature. Plaintiff need not submit any evidence
to the Court at this time, unless specifically directed to do so.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10153437. Public record. Not legal advice.