Terrance Prude v. David Clarke, Jr. ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2811
T ERRANCE P RUDE,
Plaintiff-Appellant,
v.
D AVID A. C LARKE, JR., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:10-cv-00167-JPS—J.P. Stadtmueller, Judge.
S UBMITTED M ARCH 7, 2012—D ECIDED M ARCH 27, 2012
Before P OSNER, W OOD , and T INDER, Circuit Judges.
P OSNER, Circuit Judge. The plaintiff in this prisoner’s
civil rights suit brought under 42 U.S.C. § 1983 complains
that he was subjected to cruel and unusual punishment
by personnel of the Milwaukee County Jail. (He has a
second, less substantial claim that we discuss at the end
of the opinion.) He appeals from the grant of summary
judgment to the four defendants, who are the Sheriff
2 No. 11-2811
of Milwaukee County, two County Inspectors who work
at the jail, and a guard.
The plaintiff is serving time in a Wisconsin state
prison, but was transferred to the county jail on several
occasions to enable him to attend court proceedings
relating to a postconviction petition that he had filed.
On the second and third stays, which lasted a week and
10 days respectively, the jail fed him only “nutriloaf,”
pursuant to a new policy the jail had adopted of
making nutriloaf the exclusive diet of prisoners who
had been in segregation in prison at the time of their
transfer to the jail, even if their behavior in the jail was
exemplary. Nutriloaf (also spelled “nutraloaf”) is a bad-
tasting food given to prisoners as a form of punishment
(it is colloquially known as “prison loaf” or “disciplinary
loaf”). See, e.g., Jeff Ruby, “Dining Critic Tries Nutra-
loaf, the Prison Food for Misbehaving Inmates,” Chicago
Magazine, Sept. 2010, www.chicagomag.com/Chicago-
Magazine/September-2010/Dining-Critic-Tries-Nutraloaf-
the-Prison-Food-for-Misbehaving-Inmates; Arin Green-
wood, “Taste-Testing Nutraloaf: The Prison Loaf
That Just Might Be Unconstitutionally Bad,” Slate,
June 24, 2008, www.slate.com/articles/news_and_
politics/jurisprudence/2008/06/tastetesting_nutraloaf.html;
Matthew Purdy, “Our Towns: What’s Worse Than
Solitary Confinement? Just Taste This,” N.Y. Times, Aug. 4,
2002, www.nytimes.com/2002/08/04/nyregion/our-towns-
w h a t -s-w orse-th an -so lit a ry -c o n fin e m e n t -ju s t -t a st e -
this.html (all visited March 15, 2012).
No. 11-2811 3
On his third stay, after two days on the nutriloaf diet,
the plaintiff began vomiting his meals and experiencing
stomach pains and constipation. (He had vomited
during the second stay as well.) He stopped eating
nutriloaf and subsisted for the eight remaining days of
his stay on bread and water (it’s unclear how he ob-
tained the bread). He had weighed 168 pounds before his
second and third stays at the jail, had lost either 5 or 6
pounds during the second stay, had not regained them,
and by the end of the third stay was down to 154 pounds:
he had lost 8.3 percent of his weight as a result of the
two stays (and he had not been overweight at 168).
A guard sent him to the infirmary after one of the
vomiting incidents during his third stay, and the nurses
there gave him antacids and a stool softener and one
of them told him his weight loss was “alarming.” Upon
his return to state prison he continued experiencing
painful defecation and bloody stools, and he was diag-
nosed with an anal fissure that the defendants have
not denied had developed while he was in the county jail.
The defendants’ response to his suit has been contuma-
cious, and we are surprised that the district judge did not
impose sanctions. The defendants ignored the plain-
tiff’s discovery demands, ignored the judge’s order that
they comply with those demands, and continued their
defiance even after the judge threatened to impose sanc-
tions. But the judge failed to carry through on his
threat, so the threat proved empty.
The only evidence the defendants submitted in
support of their motion for summary judgment was a
4 No. 11-2811
preposterous affidavit from a sheriff’s officer who is
also an assistant chief of a suburban Wisconsin fire de-
partment. The affidavit states only, so far as bears on
the appeal, that “Nutraloaf has been determined to be a
nutritious substance for regular meals.” The defendants
made no effort to qualify him as an expert witness. As
a lay witness, he was not authorized to offer hearsay
evidence (“has been determined to be . . . nutritious”).
No evidence was presented concerning the recipe for
or ingredients of the nutriloaf that was served at the
county jail during the plaintiff’s sojourns there. “Nutriloaf”
isn’t a proprietary food like Hostess Twinkies but,
like “meatloaf” or “beef stew,” a term for a composite
food the recipe of which can vary from institution to
institution, or even from day to day within an institu-
tion; nutriloaf could meet requirements for calories
and protein one day yet be poisonous the next if,
for example, made from leftovers that had spoiled.
The recipe was among the items of information that the
plaintiff sought in discovery and that the defendants
refused to produce.
Even an affidavit from an expert stating after a
detailed chemical analysis that “nutriloaf meets all
dietary requirements” would be worthless unless the
expert knew and stated that nutriloaf invariably was
made the same way in the institution. The assistant fire
chief’s affidavit says no such thing—and he was not an
expert.
In addition to stonewalling the plaintiff and the
district judge, the defendants failed to file a brief in this
No. 11-2811 5
court and failed to respond to our order to show cause
why they hadn’t filed a brief. They seem to think that
the federal courts have no jurisdiction over a county jail.
Deliberate withholding of nutritious food or substitu-
tion of tainted or otherwise sickening food, with the
effect of causing substantial weight loss, vomiting,
stomach pains, and maybe an anal fissure (which is no
fun at all, see http://en.wikipedia.org/wiki/Anal_fissure
(visited March 15, 2012)), or other severe hardship, would
violate the Eighth Amendment. See, e.g., Hutto v. Finney,
437 U.S. 678, 687 (1978); Atkins v. City of Chicago, 631
F.3d 823, 830 (7th Cir. 2011); Sanville v. McCaughtry,
266 F.3d 724, 734 (7th Cir. 2001); Simmons v. Cook, 154
F.3d 805, 808 (8th Cir. 1998). Not that all nutriloaf is
unhealthful, though all is reputed to have an unpleasant
taste. But we do not know the recipe for the nutriloaf
that was served the plaintiff, or whether the ingredients
were tainted or otherwise unhealthful, because of the
defendants’ failure to comply with the plaintiff’s dis-
covery demands. The defendants decided to defy rather
than to defend. The uncontradicted evidence is that
other prisoners in the jail also vomited after eating the
nutriloaf, and this suggests that it was indeed inedible.
The only possible justification for the district court’s
rejection of the plaintiff’s Eighth Amendment claim, at
this early stage of the litigation, is that he may not
have sued the right defendants, since he can prevail
against a defendant only by proving that the defendant
was deliberately indifferent to his health. The guard
who sent him to the infirmary knew he had vomited, but
6 No. 11-2811
the guard sent him for medical attention and there is
no suggestion that he was responsible for the composi-
tion of the nutriloaf or had any reason to suspect its ill
effects until the plaintiff got sick. The nurses may have
realized that the plaintiff would suffer seriously if he
weren’t given a different diet, and maybe they should
have done something other than just treat his symptoms,
but they are not defendants. We don’t know the
precise role that any of the four defendants—the sheriff,
who runs the jail, the two inspectors, and the jail guard
(whether he was the guard who sent the plaintiff to the
infirmary or some other guard is another thing we
don’t know)—played in making the plaintiff sick. He
filed a grievance with the jail, although after his last
sojourn there, when he was back in state prison
with its adequate diet. The grievance states that the
defendant inspectors had authorized the nutriloaf for
the prisoners in the part of the jail in which the
plaintiff was housed and that they’d done this pursuant
to policy established by the defendant sheriff.
Complaints filed by unrepresented prisoners are sup-
posed to be construed liberally. E.g., McNeil v. United
States, 508 U.S. 106, 113 (1993); Haines v. Kerner, 404
U.S. 519, 520 (1972) (per curiam); Marshall v. Knight, 445
F.3d 965, 969 (7th Cir. 2006); Chavis v. Chappius, 618 F.3d
162, 170-71 (2d Cir. 2010). There are intimations in the
record that jail officials—who may have included one
or more of the named defendants—were aware of the
plaintiff’s plight, and it is apparent that nothing was
done to replace the nutriloaf diet that was sickening
him, though he was able somehow to obtain bread. The
No. 11-2811 7
record contains statements that he had “tried to solve
this problem by speaking with a [correctional officer],”
that after a second incident of vomiting he “told officers
again,” that he was “taken to the clinical office to be
seen by a nurse” (presumably guards took him there),
that other inmates were vomiting their nutriloaf meals
(which must have been observed by correctional officers),
and that he had written the sheriff informing him
about their vomiting. Adult vomiting other than
because of illness or drunkenness is rare—healthy, sober
adults do not vomit a meal just because it doesn’t taste
good—and if the plaintiff is being truthful there was
a veritable epidemic of vomiting during his stay. “A risk
can be so obvious that a jury may reasonably infer
actual knowledge on the part of the defendants.” Hall v.
Bennett, 379 F.3d 462, 464 (7th Cir. 2004); see Farmer v.
Brennan, 511 U.S. 825, 842-43 (1994). The defendants
have submitted no contrary evidence, once the inadmis-
sible affidavit from the assistant fire chief is ruled out. It
is a possible though certainly not an inevitable in-
ference from the record (and from the defendants’ contu-
macy) that jail officials were aware that the nutriloaf
being fed the prisoners when the plaintiff was there
was sickening him yet decided to do nothing about it.
That would be deliberate indifference to a serious health
problem and thus state an Eighth Amendment claim.
The dismissal of the suit was premature. Since the
plaintiff has departed from the county jail and the case
involves medical issues, we suggest that the district
court request a lawyer to assist him in litigating his
8 No. 11-2811
claim. The court should also consider imposing sanc-
tions on the defendants.
The plaintiff’s other claim is that the defendant jail
guard offered him a sandwich (and not of nutriloaf, either)
if he would spy on other prisoners, and that he had
refused. Bribing prisoners in a nonfederal jail to inform
on other prisoners does not violate any federal law of
which we’re aware. The failure to give the plaintiff
the sandwich could not be thought cruel and unusual
punishment for his refusing to take the bribe, for it
made him no worse off than he would have been had
no bribe been offered—stuck with a nutriloaf diet. The
second claim adds nothing to the first, so we affirm
its rejection.
The judgment is affirmed in part, reversed in part,
and remanded. We order the defendants to show cause
within 14 days of the date of this order why they
should not be sanctioned for contumacious conduct in
this court. If they ignore this order to show cause like
the last one, they will find themselves in deep trouble.
3-27-12