NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 30, 2011*
Decided December 1, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11‐1801
RONNIE L. FAMOUS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 07‐C‐0847
WILLIAM POLLARD, et al., C.N. Clevert, Jr.,
Defendants‐Appellees. Chief Judge.
ORDER
Ronnie Famous, a Wisconsin inmate, appeals from the grant of summary judgment
against him in his suit under
42 U.S.C. § 1983 claiming that prison staff acted with
deliberate indifference by serving him contaminated meals and tampering with his personal
effects and then violated the First Amendment by retaliating against him when he
complained. We affirm.
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 11‐1801 Page 2
Famous was an inmate at Green Bay Correctional Institution in early 2007, when a
lockdown led to meals being delivered in and served from laundry carts that, he says, were
dirty—having held laundry he knew from prior work to be soiled with blood, feces, urine,
semen, bacteria, and other disease‐producing germs. Famous asserts that prison guard Jay
Hartstern served him cross‐contaminated food to retaliate for his filing an offender
complaint about the food being contaminated. He also asserts that he complained about the
contamination to Warden William Pollard, Deputy Warden Michael Baenen, and Sergeant
James Cygan and that these officials acted with deliberate indifference by failing to
investigate or stop the asserted constitutional violations. Famous, who according to prison
records suffers from a delusional thought disorder, further claims that other officials
retaliated against these complaints by doctoring his toothpaste with a substance that caused
stomach problems, bowel movements, and pain to his neck, back, and spinal cord.
Following protracted discovery, the district court granted summary judgment for the
defendants on all claims. Regarding the food‐contamination claim, the court expressed
concern about the prison’s practice of using the same laundry carts to deliver food trays as
to collect dirty laundry, but found no deliberate indifference without any objective evidence
that the covered meal trays were contaminated by anything in the laundry carts. Regarding
Famous’s retaliation claim against Hartstern, the court found no evidence of any change in
the guard’s behavior after Famous had filed an offender complaint, let alone any retaliatory
animus for a change in behavior. As for Famous’s claim that Pollard, Baenen, and Cygan
failed to investigate or act, the court found the evidence undisputed (1) that Pollard
delegated the investigation of the situation to Baenen, and was justified in doing so; (2) that
Baenen appropriately delegated responsibility of the situation to clinical and security staff;
and (3) that Cygan could not be liable because no objective evidence showed that the meal
trays were contaminated by anything in the laundry carts.
Famous appeals, raising three challenges to the district court’s summary judgment
ruling. First, he asserts that the court improperly granted summary judgment on his food‐
contamination claim because his submissions opposing summary judgment demonstrated
unspecified fact issues regarding whether he was knowingly served contaminated food. In
his filings, Famous describes the discomfort he experienced upon eating the meals and
maintains that the defendants knew about his stomach pain. Famous, however, cites no
objective evidence suggesting that his meals were in fact contaminated. And while
Famous’s complaints of stomach pain were perhaps sufficient to make staff members aware
of a serious risk to his health, prison staff were not indifferent to these concerns as they
encouraged him to see the health services staff.
No. 11‐1801 Page 3
Second, Famous argues that fact issues should have precluded summary judgment
on his retaliation claim. He disputes the district court’s finding that Hartstern’s behavior did
not change after he filed an offender complaint and points to his assertions that after he
filed his complaint he received meal trays with broken lids and food containing foreign
objects. Famous’s submissions, however, include both general claims that Famous
sometimes received meal trays with broken lids and foreign objects between February and
May of 2007 and claims that he was given such trays in retaliation for his complaints.
Famous does not explain why the district court should have concluded that this conduct
was retaliatory when it had apparently occurred both before and after he filed his
complaint. Further, Famous cited no evidence suggesting that Hartstern even knew that he
had filed a complaint, and suspicious timing alone is insufficient to establish a fact issue for
trial. See Hobbs v. City of Chicago,
573 F.3d 454, 464 (2009).
Famous also argues that summary judgment was improper on his claims against
Pollard, Baenen, and Cygan because his complaints were sufficient to apprise these officials
of serious risks to his health. Famous maintains that these officers then acted with deliberate
indifference by disregarding his complaints. Although Famous complained about his meals
and toothpaste to these officers, as discussed above they had no basis from which to
conclude that the meals were contaminated. And Famous’s reporting of his suspicions of
toothpaste tampering was insufficient to establish a fact issue about whether the officers
knew about and approved, condoned, or turned a blind eye to the alleged tampering. See
Riccardo v. Rausch,
375 F.3d 521, 527–28 (7th Cir. 2004) (“A prisonerʹs bare assertion is not
enough to make the guard subjectively aware of a risk, if the objective indicators do not
substantiate the inmate’s assertion.”); Reed v. McBride,
178 F.3d 849, 851–52 (7th Cir. 1999).
Further, Famous does not dispute that Cygan listened to his concerns about his meals and
toothpaste and advised him to file an offender complaint. Finally, even if Famous’s offender
complaints had been sufficient to apprise Pollard and Baenen of a serious risk, Pollard did
not disregard Famous’s complaints but delegated investigation to Deputy Warden Baenen.
And Baenen, for his part, offered undisputed evidence that he followed up on Famous’s
complaints, referring them to staff members for investigation when he determined that the
complaints were credible, and making inquiries to the psychological and medical staff
regarding Famous’s health. Delegation of a prisoner’s grievances does not constitute
deliberate indifference but the efficient delegation of work. See Burks v. Raemisch,
555 F.3d
592, 595 (7th Cir. 2009).
Famous also mounts a number of challenges to various procedural rulings. First, he
argues that the court abused its discretion in denying his motion to extend the discovery
deadline. Famous asserted that he needed more time to identify the “Doe defendants” (the
defendants’ discovery response included only these officers’ titles and surnames), but the
No. 11‐1801 Page 4
district court denied his motion, noting that the defendants’ discovery responses appeared
to be complete. While district courts must assist pro se plaintiffs in investigating the
identities of unnamed defendants, see Donald v. Cook Cnty Sheriffʹs Dep’t, 95 F 3d 548, 555
(7th Cir. 1996), we agree that the defendants’ response was adequate because Famous could
have amended his complaint and served process without the Doe defendants’ first names.
See Antonelli v. Sheahan,
81 F.3d 1422, 1426 (7th Cir. 1996) (an inmate proceeding in forma
pauperis may rely on the Marshals Service to serve process and need furnish “no more
information than necessary to identify the defendant.”).
Because the district court did not err in determining that the defendants had
substantially complied with Famous’s discovery request, it also did not abuse its discretion
when it denied Famous’s motion under then–Federal Rule of Civil Procedure 56(f) (now
FED. R. CIV. P. 56(d)) to stay the defendants’ motion for summary judgment until they had
supplemented their response to Famous’s first request for production of names, locations,
and documents. See Waterloo Furniture Components, Ltd, v. Haworth, Inc.,
467 F.3d 641, 648
(7th Cir. 2006); Farmer v. Brennan,
81 F.3d 1444, 1449 (7th Cir. 1996).
Famous next takes issue with the district court’s dismissal of the Doe defendants
whom he says served him contaminated meals and tampered with his toothpaste. But
dismissal with prejudice is appropriate when a plaintiff fails to serve a defendant with a
summons, see FED. R. CIV. P. 41(b); O’Rourke Bros. Inc. v. Nesbitt Burns, Inc.,
201 F.3d 948, 952
(7th Cir. 2000), and Famous never attempted to serve the Doe defendants.
Finally, Famous asks us to recruit counsel for this appeal, but we deny his request.
AFFIRMED.
