Gerken

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

CHRISTOPHER GERKEN, M12556, )

)

Plaintiff, )

)

vs. )

) Case No. 25-cv-2130-DWD

ANTHONY WILLS, )

JOHN/JANE DOE, )

C/O BAXTER, )

)

Defendants. )

MEMORANDUM AND ORDER

DUGAN, District Judge:

Plaintiff Christopher Gerken, an inmate of the Illinois Department of Corrections

(IDOC) currently detained at Lawrence Correctional Center, brings this civil rights action

pursuant to 42 U.S.C. § 1983 for alleged deprivations of his constitutional rights while at

Menard Correctional Center. (Doc. 1). Specifically, Plaintiff alleges that from

approximately August 19, 2024-September 21, 2024, he was served contaminated kosher

food trays that occasionally made him ill. The Court dismissed Plaintiff’s original

complaint as insufficient to state a claim (Doc. 10), and he has filed a timely amended

complaint (Doc. 11).

Plaintiff’s amended complaint (Doc. 11) is now before the Court for preliminary

review pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to

screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a)-

(b). 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. Rodriguez v.

Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

The Amended Complaint

All of the allegations in Plaintiff’s amended complaint are verbatim identical to his

prior complaint and are as follows: Plaintiff alleges that around August 19, 2024, the

kitchen began to distribute kosher trays in an unsanitary fashion. (Doc. 1 at 5). The trays

typically contain a Styrofoam container with a salad, fruit, vegetables, crackers and milk.

A separate sealed prepackaged meal is heated and contains the entrée. He claims that in

August of 2024 the kitchen began to stuff the prepackaged heated meal inside of the

Styrofoam tray. This made it impossible to close the Styrofoam or caused it to break. He

claims the prepackaged meal was contaminated with steam from a warming table and it

created condensation in the Styrofoam, which would then contaminate all the salad,

vegetables, etc.. Because the Styrofoam could no longer be fastened shut, it also meant

the trays were exposed to bugs and filth during the trip from the kitchen to the cellhouse.

(Doc. 1 at 5).

After receiving 11 trays like this, Plaintiff filed an emergency grievance on August

25, 2024, but Defendant Wills deemed it non-emergent. (Doc. 1 at 5-6). Plaintiff

complained in the grievance, which he attached to the complaint, that he was worried

this method of food delivery would cause illness. (Doc. 1 at 6). After filing the grievance,

Plaintiff alleges he began to experience flu-like symptoms including vomiting, cramping,

nausea and diarrhea. On September 4, 2024, the John/Jane Doe dietary supervisor

indicated to a counselor in response to Plaintiff’s grievance that meals were being served

in accordance with state standards. (Doc. 1 at 6). Plaintiff alleges the contaminated meals

continued, he continued to feel sick, and he placed multiple sick call requests to no avail.

(Doc. 1 at 6).

On September 4, 2024, Defendant Baxter served him a tray that was not properly

latched shut, and that sat on the bottom of a food cart as the cart traversed a filthy floor

often contaminated with feces and urine. (Doc. 1 at 6-7). Plaintiff showed Baxter that the

tray was open and asked for a replacement, but Baxter refused. Plaintiff asked to speak

with a supervisor and asked Baxter a second time for a new tray, but Baxter refused. With

no alternatives, Plaintiff ate the tray and had diarrhea and vomiting later that night. (Doc.

1 at 7). He filed an emergency grievance the same day, and on September 10, 2024,

Defendant Wills deemed it a non-emergency. Plaintiff got the counselor’s response and

submitted the grievance to the second level of grievance officer review before being

transferred from Menard to Pontiac. (Doc. 1 at 8). He was transferred to Pontiac before

his grievance was returned. He pursued it further with the Administrative Review

Board, but they deemed it untimely. (Id.). Plaintiff alleges he received contaminated

trays until September 21, 2024. He faults Defendants Wills and the John Doe Dietary

Supervisor for failing to try to remedy the problem for a whole month. (Doc. 1 at 8).

Plaintiff faults Defendant Wills for failing to act on his two detailed grievances.

(Doc. 1 at 11). He faults John Doe for learning of the issue via the grievance process and

failing to act. (Doc. 1 at 12). Finally, he faults Baxter for refusing him a replacement tray

on September 4, 2024. (Doc. 1 at 12). Plaintiff seeks monetary compensation. (Doc. 1 at

13). He attached both grievances to his complaint.

The sole change to Plaintiff’s amended complaint is his additional allegation that

he filed multiple grievances making Wills and John Doe aware of the dietary issues that

were making him ill. He alleges they took zero corrective action, and it was inappropriate

for supervisors to allow foodborne illness issues to persist. (Doc. 11 at 8). Plaintiff alleges

the defendants’ inaction led him to suffer from foodborne illness for an entire month.

(Id.).

Analysis

The analysis the Court previously provided still holds. (Doc. 10 at 4-5). The Court

found that the allegations against Wills were not sufficient to proceed because the first

grievance did not alert Wills to any food borne illness for Plaintiff, and the second

grievance only mentioned minor flu like symptoms. Though Wills deemed the

grievances non-emergency, that did not end the investigation into the allegations because

the grievance proceeded to be processed at other levels of review. Wills’ failure to deem

the grievances an emergency does not exhibit deliberate indifference to a serious risk and

thus does not support a plausible claim under the Eighth Amendment.

Second, Plaintiff faults the John Doe dietary supervisor for being alerted to the

issue by his first grievance and failing to act by telling the counselor that food was being

handled in accordance with proper procedure. He says nothing to suggest that John Doe

knew about the second grievance. The mere fact that John Doe was alerted to one

grievance about food handling that did not contain any allegations of actual harm is

simply not enough to characterize his conduct as deliberate indifference. Plaintiff now

alleges he was sick for a month and, as a supervisor, John Doe should have done more.

These assertions do not change the earlier analysis because there is no indication that

John Doe was ever notified of Plaintiff’s illness. (Doc. 10 at 5). Additionally, prison

officials cannot be held liable purely because they hold a supervisory role. Thus, the

claim against John Doe is still insufficient.

Third, and finally, Plaintiff faults Defendant Baxter for serving him a tray that was

exposed to filth in the gallery and refusing to replace it. Plaintiff does not mention any

encounters with Baxter other than the one issue on September 4. Generally, “[o]ccasional

instances of food or water contamination in prison will not support a claim of deliberate

indifference to conditions of confinement under the Eighth Amendment.” Olrich v.

Kenosha Cty., 2020 WL 1169959, at *3 (E.D. Wisc. Mar. 11, 2020) (citing McRoy v. Aramark

Correctional Servs., Inc., 268 F.App'x 479 (7th Cir. 2008) (no deliberate indifference where

inmate was served undercooked chicken on one occasion, sour milk on six occasions, and

spoiled sandwich meat on three occasions, where inmate was offered replacement items

when available, and no further incidents occurred); Franklin v. True, 76 F.3d 381 (7th Cir.

1996) (concluding that one instance of food poisoning was insufficient to state conditions-

of-confinement claim); Hadley v. Dobucki, 59 F.3d 173, 1995 WL 364225 (7th Cir.

1995) (occasional “foreign objects” such as aluminum foil in prison food did not state an

Eighth Amendment claim)). Here, Plaintiff only seeks to hold Baxter responsible for a

single occasion of contaminated food. Single interactions are generally not enough to

sustain a deliberate indifference claim. See e.g., Owens v. Duncan, 788 F. App'x 371, 374

(7th Cir. 2019) (a single interaction with staff at sick call did not amount to deliberate

indifference); Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997) (“isolated instances of

neglect … cannot support a finding of deliberate indifference”). Though he complained

to Baxter that he wanted a new tray because his was not sealed, there is no indication he

told Baxter that unsealed trays had made him sick in recent weeks. On the available

information, Baxter’s conduct does not rise to the level of deliberate indifference.

Having reviewed Plaintiff’s allegations twice and given that almost nothing

changed from his original to his amended complaint, the Court finds it unnecessary to

invite further amendments. See e.g. Zimmerman v. Bornick, 25 F.4th 491, 494 (7th Cir. 2022)

(amendment would be futile if plaintiff already had multiple chances to cure

deficiencies); Always Towing & Recovery, Inc. v. City of Milwaukee, 2 F.4th 695, 707 (7th Cir.

2021) (courts may deny leave to amend if an amendment would be futile); McCree v.

Grissom, 657 F.3d 623, 624 (7th Cir. 2011) (leave to amend shall be granted where justice

so requires, but leave to amend need not be given if an amendment to the complaint

would be futile). As such, this case is now dismissed for failure to state a claim under 28

U.S.C. § 1915A. This dismissal shall count as a strike for purposes of 28 U.S.C. § 1915(g).

Disposition

Plaintiff’s Amended Complaint (Doc. 11) is DISMISSED with prejudice for failure

to state a claim under 28 U.S.C. § 1915A. The Clerk of Court shall enter judgment and

CLOSE this case.

If Plaintiff wishes to appeal this Order, he must file a notice of appeal with this

Court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(1)(A). If Plaintiff

chooses to appeal, he will be liable for the $605.00 filing fee irrespective of the outcome

of the appeal. See FED. R. App. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d

724, 725-56 (7th Cir. 2008). Moreover, if the appeal is found to be nonmeritorious, Plaintiff

may incur another “strike” under 28 U.S.C. § 1915(g). A proper and timely motion filed

pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline.

Feb. R. App. P. 4(a)(4). A Rule 59(e) motion must be filed no later than 28 days after the

entry of judgment, and this 28-day deadline cannot be extended.

IT IS SO ORDERED. Ries .

d Digitally signed

Dated: May 12, 2026 J U g e by Judge Dugan

Date:

D U g AN 2026.05:12

12:20:37 -05'00'

DAVID W. DUGAN

United States District Judge