In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2811

TERRANCE PRUDE,

Plaintiff-Appellant,

v.

DAVID A. CLARKE, 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.

SUBMITTED MARCH 7, 2012—DECIDED MARCH 27, 2012

Before POSNER, WOOD, and TINDER, Circuit Judges.

POSNER, 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 badtasting 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 Nutraloaf, the Prison Food for Misbehaving Inmates,” Chicago

Magazine, Sept. 2010, www.chicagomag.com/ChicagoMagazine/September-2010/Dining-Critic-Tries-Nutraloafthe-Prison-Food-for-Misbehaving-Inmates; Arin Greenwood, “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-townswhat-s-worse-than-solitary-confinement-just-tastethis.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 obtained 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 diagnosed 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 contumacious, and we are surprised that the district judge did not

impose sanctions. The defendants ignored the plaintiff’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 sanctions. 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 department. 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 institution; 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 substitution 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 discovery 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 composition 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 supposed 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 inadmissible affidavit from the assistant fire chief is ruled out. It

is a possible though certainly not an inevitable inference from the record (and from the defendants’ contumacy) 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 sanctions 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