IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Benjamin Hendricks, :

Plaintiff, :

v. : Case No. 2:11-cv-40

Ohio Department of : JUDGE MICHAEL H. WATSON

Rehabilitation and Correction, Magistrate Judge Kemp

et al., :

 

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, Benjamin Hendricks, a state prisoner, filed this

action under 42 U.S.C. §1983 alleging that by denying him a

restricted diet as ordered by medical specialists, defendants

John DesMarais, Mona Parks, Theresa Bell, and Susan Nesbitt have

demonstrated deliberate indifference to his serious medical

needs. Mr. Hendricks also alleges that Michelle Miller, Warden

at the Belmont Correctional Institution, violated his First

Amendment rights when she destroyed his legal materials in

retaliation for his having filed grievances regarding his medical

care. Currently before the Court is the defendants’ motion for

summary judgment. The motion has been fully briefed. For the

following reasons, the Court will recommend that the motion for

summary judgment be granted.

I. Legal Standard

Summary judgment is not a substitute for a trial when

facts material to the Court's ultimate resolution of the case

are in dispute. It may be rendered only when appropriate

evidentiary materials, as described in Fed. R. Civ. P. 56(c),

demonstrate the absence of a material factual dispute and the

moving party is entitled to judgment as a matter of law.

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Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464

(1962). The moving party bears the burden of demonstrating

that no material facts are in dispute, and the evidence

submitted must be viewed in the light most favorable to the

nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144

(1970). Additionally, the Court must draw all reasonable

inferences from that evidence in favor of the nonmoving

party. United States v. Diebold, Inc., 369 U.S. 654 (1962).

The nonmoving party does have the burden, however, after

completion of sufficient discovery, to submit evidence in

support of any material element of a claim or defense on

which that party would bear the burden of proof at trial,

even if the moving party has not submitted evidence to negate

the existence of that material fact. See Celotex Corp. v.

Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242 (1986). Of course, since "a party seeking

summary judgment ... bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact," 

Celotex, 477 U.S. at 323, the responding party is only required

to respond to those issues clearly identified by the moving party

as being subject to the motion. It is with these standards in

mind that the instant motion must be decided.

II. Factual Background

At the outset, the Court notes that the verified revised

amended complaint is not entirely specific regarding the time

frame relevant to Mr. Hendricks’ Eighth Amendment claim. In his

response to the motion for summary judgment, Mr. Hendricks

clarifies that his claim is directed only to events occurring

between February 20, 2009 and November, 2009 while he was

incarcerated at the Belmont Correctional Institution. See

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Plaintiff’s Response (Doc. #102), p. 24. As a result, the Court

will limit its discussion of the medical records and other

factual material presented to this time period other than as

needed to provide background information. Almost all of the

evidentiary material submitted for the Court’s review is

addressed to Mr. Hendricks’ Eighth Amendment claim. The

following facts, construed in the light most favorable to Mr.

Hendricks, are taken from the verified revised amended complaint

and Mr. Hendricks’ declaration in support of his memorandum

contra the motion for summary judgment with attached exhibits. 

A. Eighth Amendment Claim

Dr. DesMarais was the medical director for the Ohio

Department of Rehabilitation and Correction during Mr. Hendricks’

incarceration at Belmont. Revised Amended Complaint ¶11. Ms.

Parks was an assistant chief inspector (medical) for the ODRC

during this time. Id. at ¶12. Ms. Bell was the dietary

operations manager for the ODRC and Ms. Nesbitt was the health

care administrator at Belmont. Id. at ¶¶13, 14. 

Prior to his incarceration, Mr. Hendricks was diagnosed with

ulcerative colitis and had his colon removed. Hendricks’

Declaration, ¶3, ¶5. Upon his incarceration, he was hospitalized

at the Ohio State University Medical Center. Id. at ¶8. He was

discharged from OSU on October 23, 2008, with orders to the

Corrections Medical Center that he be given a “Regular/Lo

Residue” diet. Id. at ¶11. On December 24, 2008, he was

transferred to the Belmont Correctional Institution. Id. at ¶13. 

Shortly after his arrival at Belmont, Mr. Hendricks met with a

dietetic technician who attempted to address his dietary needs. 

Id. at ¶14. Because food service was having difficulty

understanding the diet, Mr. Hendricks had a conversation with the

inspector of institutional services on February 19, 2009. Id. at

¶15. The inspector obtained a copy of Mr. Hendricks’ diet card

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and contacted Ms. Nesbitt. Id. at ¶16. On February 20, 2009, Ms.

Nesbitt confiscated Mr. Hendricks’ diet card. Id. at ¶17. On

February 25 and 27, 2009, Mr. Hendricks met again with the diet

technician. Id. at ¶¶19, 21. 

Mr. Hendricks did not believe his meeting on February 27

resolved his diet issue and he initiated the grievance process

later that day. Hendricks Declaration, ¶23, PAGEID# 855. In his

informal complaint, he stated: 

On 2/19/09 I had a conversation with Ms. Riley

about my special diet. She took a photo copy of my

diet card and contacted Ms. Nesbitt HCA. ON 2/20/09

Ms. Nesbitt took my diet card because the doctor did

not prescribe the diet. Ms. Nesbitt then consulted my

chart from O.S.U. Hospital and found the diet

prescription. On 2/25/09 I saw the diet technician who

found out that the diet I was to be on was what she had

on the original diet that Ms. Nesbitt took. On 2/27/09

I saw the diet technician who said that per DRC and

Belmont policy that my diet didn’t have to be followed.

... 

Id. 

Mr. Hendricks received a response to this complaint on March

10, 2009, which stated, in part, “you are receiving the

appropriate diet and diet education from medical.” PAGEID # 855. 

Mr. Hendricks prepared a notification of grievance on March 13,

2009, stating:

I have been having problems with dietary issues

since day 1. It clearly states in my chart from OSU

Hospital that I am to be on a low residue diet. Also

anybody who knows anything about Crohns Disease knows

there are certain foods that cause irritation and pain. 

Also because of the loss of my entire colon I should be

taking some kind of dietary supplement. Under the

Fussell agreement section JJ under diets it states that

all institutions must provide medically required diets. 

PAGEID #856.

Mr. Hendricks received a disposition of grievance dated

March 27, 2009, signed by Kelly S. Riehle which stated:

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Your grievance, filed on 03/17/2009, has been

reviewed and disposed of follows:

The office of Inspector is in receipt of your complaint

in which you state that you are having problems with

your diet and that you are to be on a low residue diet.

To investigate your complaint, I reviewed your medical

file and spoke to Ms. Nesbitt, HCA.

Per your medical file, OSU notes, there is no evidence

that you have Crohn’s Disease. Your colon was removed

prior to incarceration so there is nothing in your

current medical file to indicate why the surgery was

performed. You give conflicting stories of why to

various BeCI staff, telling medical it’s Crohn’s but

telling other staff you were shot in Iraq. BeCI

medical has sent for you (sic) medical records. Once

they obtain them they will be reviewed to see if there

is any record or medical evidence of Crohns’ (sic)

disease. If there is, it will be addressed. Regarding

your diet, because you do have a colostomy bag you are

being afforded a special diet. You are to receive 6

small meals a day. You have been educated on what food

you are to stay away from. If a food that you are not

to eat is on the menu you are given a substitute for

that item. 

Per your medical records you have gained weight since

you entered the system so apparently your nutritional

needs are being met. There is nothing in your medical

chart to indicate you need a dietary supplement.

It is my finding that there is insufficient evidence to

support your claim.

This office will take no further action on this matter

at this time.

PAGEID #857.

On April 5, 2009, Mr. Hendricks filed an appeal to the Chief

Inspector which stated:

Ms. Riehle is incorrect in her review of my medical

records. Crohn’s Disease is well documented and

surgery is needed, per OSU, from this problem. Ms.

Riehle is correct that my colon was removed prior to my

incarceration but it is well documented as to why -

Crohn’s disease. Again if BECI had sent for my records

3 months ago the level of care I’m receiving wouldn’t

be an issue.

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As for the special diet. I am receiving 3 regular

trays a day (1,000 calorie) like everybody else plus 3

so called small meals consisting of: 1 piece of cheese,

1 piece of stale bread, 1 apple/orange. This is the

same thing every day. This does not constitute 6 small

meals.

Ms. Riehle is correct that I am being adjusted but only

from recent info sent to me from Crohn’s and Colitis

Foundation of America and not from IHS. This is

basically the problem. Every time I raise the issue of

what I have learned I’m told either I’m lying or I

don’t have Crohns or something else. 

The only substitution of the food is the main course

which is substituted with other food I still have

trouble eating.

...

PAGEID #858. The chief inspector responded on April 22, 2009,

concluding that Mr. Hendricks was being afforded proper care

under ODRC guidelines and affirming the inspector. PAGE ID

##859-860.

On April 23, 2009, Mr. Hendricks was seen at the East Ohio

Regional Hospital for abdominal pain. Hendricks’ Declaration,

¶26. The emergency trauma record contains the following

information:

This is a 32-year-old presents to the emergency

department complaining of right-sided abdominal pain. 

He has a history of Crohn’s. Has a colostomy on the

right. He states he gets flare-ups like this before

when he gets constipated and obstructed. He is not

vomiting. No nausea at this time. Just the right-side

cramping pain. He states he really has had much out of

his colostomy. He states usually will need some

Toradol for pain and magnesium citrate. It is mainly

because he states they are not giving him the right

diet. He has no other complaints. 

Emergency Department Course

After evaluation I went ahead and obtained Hep-Lock. 

Lab work was drawn. CBC, metabolic panel were within

normal limits. Abdominal series showed nonspecific

bowel gas pattern. He was given Toradol, mag citrate,

which he states [is] what he typically gets when this

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happens. We will go ahead and discharge him back to

the prison where he [] follow up with Dr. Gujral and

modify his diet and return if his symptoms worsen.

Page ID #862 

 

On July 7, 2009, Mr. Hendricks was seen over GI Telemed by

Dr. Levine to discuss treatment and follow-up care for Crohn’s

disease. PAGEID #868. Dr. Levine’s impression and treatment

plan are reflected in a letter addressed to Dr. Akusoba of the

Corrections Medical Center. Id. 

Impression: 1. Crohn’s colitis status post total

colectomy diagnosed in 2002. There is no family

history of colon cancer. He does not [] a rectum still

left in situ and he has an ileostomy. His endoscopies

from October 2008 were reviewed. He does have some

rectal inflammation. I had referred him for a DEXA

scan. This was not done. I referred him for

evaluation with colorectal surgery but this was not

done. He had talked with his gastroenterologist and

colorectal surgeon who had seen him prior to him coming

to prison and they did not recommend removing his

rectum. We stopped his Remicade and he has had no real

change in his symptoms. He is really doing pretty

well. No abdominal pain, no nausea, no vomiting. 

Weight loss. His weight is down 8 pounds from

November. No fever, no chills. He does not smoke. He

does complain of the fact that he has not been able to

be placed on a low residue diet. 2. History of

seizures.

Plan: 1. DEXA scans.

2. Low-residue diet.

3. Follow-up with me in Telemedicine six months’ time.

4. Yearly flex sig for surveillance purposes.

5. Folic acid 1 mg per day for chemo prophylaxis. 

Id. 

On July 29, 2009, Mr. Hendricks underwent DEXA scanning at

OSU. Page ID #869. One of the indications for testing was

Crohn’s disease. Id. 

On October 10, 2009, Mr. Hedricks was admitted to the East

Ohio Regional Hospital. PAGEID #871. He was discharged on

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October 14, 2009 with a discharge diagnosis of Stevens-Johnson

syndrome, secondary to Dilantin allergy; absence epilepsy,

controlled; history of Crohn’s disease, status post partial colon

resection and status post ileostomy; hypokalemia; and allergic

pneumonia, secondary to medication. Id. 

On November 2, 2009, Mr. Hendricks was seen at the East Ohio

Regional Hospital Emergency Room for “bleeding from ostomy,

abdominal pain.” PAGEID #872. According to the emergency trauma

record, the treating physician’s findings included:

Ed Course

The patient states he has changed his ostomy bag

once had the same amount of blood earlier today. The

patient did have a heparin lock established. I was

concerned about anemia secondary to blood loss. CBC

showed a white count of 10.4, H&H 13.7 and 41.2,

platelet count was 309.000. Basic metabolic panel

showed a potassium of 3.3, direct bilirubin less than

0.1. The remainder was normal. He had a serum

sedimentation rate performed which was normal at 7. I

discussed this case with Dr. Chacko who is the

gastroenterologist on-call at OSU. He did accept this

patient in transfer. I have spoken with Dr. Gujral

prior to this and he approved the transfer of the

patient to OSU. The patient has been cared for at OSU

in the past for this, was hospitalized for a week for

the same problem. He was transferred via ambulance to

OSU for further workup and management. He had had an

abdominal CT with oral contrast and this had shown

thickening of the walls of the small bowel proximal

loops consistent with enteritis. I believe the patient

is suffering with an exacerbation of his Crohn (sic)

disease. He was transferred to OSU in stable

condition. 

Id. 

According to the discharge instructions from OSU, Mr

Hendricks was admitted on November 3, 2009 and discharged on

November 22, 2009. PAGEID #876-878. The reason for

hospitalization is stated as:

admitted with [] and pain. Found to have

perastomal hernia. repaired. postop with pain, possible

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infected hematoma. drained. wound to heal by secondary

intention. TID wet to dry dressings. Invanz to

continue through 11.25. Tolerating diet at d/c. Also

found to have diversion colitis. Gi recommends BID

short chain fatty acid enemas x 6 weeks.

The discharge instructions indicate a diagnosis of Crohn’s flare

and a recommended regular/lo residue diet. PAGEID ##876-877. In

late November, 2009, Mr. Hendricks was transferred from Belmont

to the Frazier Health Center at Pickaway Correctional

Institution. Hendricks’ Declaration, ¶38.

 Medical records for the relevant time period provided by the

defendants in support of their motion for summary judgment reveal

the following. Interdisciplinary progress notes dated February

20, 2009 state as follows:

Met with patient to review diet orders. He

discussed what he could not eat and his food

preferences. He stated that OSU had him on a low

residue diet. I located his discharge instructions

from OSU and found: Regular low residue listed as his

diet. I shared this information with the dietician and

asked which of our diet plans fits this criteria. 

Informed patient I would have him seen on Wednesday by

diet technician. SNesbittHCA. 

Further, notes dated March 26, 2009 state:

Arrived in IHS to sign releases of information. Asked

if he wanted to keep appointment with diet technician. 

He reports “I had passes for SAMI and medical at same

time.” Informed him I would get him rescheduled with

diet tech. He asked to be seen by NP re: wound care. 

Informed him he would be scheduled. Has appointment

with Dr. Gujral to review seizure medication. SNesbitt

HCA. 

Motion for Summary Judgment, Exhibit G

Infirmary admission orders dated April 23, 2009, indicate

that Mr. Hendricks had a “low residue diet order.” Motion for

Summary Judgment Exhibit I. Further, orders dated May 22, 2009

indicate that Mr. Hendricks was to have six small meals a day for

six months and be weighed monthly. Id. at Exhibit K. 

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Defendants’ Exhibit M is a page of interdisciplinary

progress notes containing an incomplete date (--/29/09 which

defendants appear to interpret as December 12, 2009, see Roush

Affidavit Exhibit P ¶9) which states: 

When diet cards were passed for inmate to pick up

this inmate refused the diet card and stated to corr.

officer “when the pass is yellow, then I will accept

it. See diet pass attached to note. 

The signature following this entry is illegible. This page

also contains a photocopy of a diet pass issued to Mr. Hendricks. 

The pass identifies Mr. Hendricks’ diet as “six small meals” with

special instructions indicating an allergy to peanut butter, and

that he is not to have “wheat bread, corn, raw veg or fruit.” 

The pass notes an expiration date of November 17, 2009 and states

that it “[e]xpires 180 days from issue date.” 

Defendants also have submitted declarations from Ms. Nesbitt

and Mary Roush, the Acting Operations Manager at the Pickaway

Correctional Institution where Mr. Hendricks is currently housed. 

According to these declarations, while correctional institutions

can provide meal plans to address an inmate’s specific dietary

needs, the inmates are entitled to refuse these plans and

purchase food items from the institution’s commissary. Mr.

Hendricks’ commissary records for the relevant time period

indicate purchases of coffee, ramen noodles, Snickers, popcorn,

cookies, hot sauce, soft drinks, and macaroni and cheese. Motion

for Summary Judgment, Exhibits L and P.

 Defendants also have submitted several of Mr. Hendricks’

medical records from 2007 and 2008. Some of these records

indicate a history of Crohn’s disease but at least one of these

records suggests no evidence of Crohn’s disease. See Motion for

Summary Judgment Exhibits A-D. Mr. Hendricks has submitted

several medical records dating from 2002-2008. See PAGEID ##825-

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854. These records indicate a diagnosis of ulcerative colitis in

2002 followed by the removal of his colon. Records from 2003

indicate symptoms consistent with Crohn’s disease. A Corrections

Medical Center discharge summary dated October 23, 2008,

indicates that Mr. Hendricks experienced a “Crohn’s

Exacerbation.” PAGEID #854. Discharge instructions from OSU

Medical Center indicate that Mr. Hendricks was hospitalized from

October 11, 2008 to October 22, 2008, for a “Crohn’s

exacerbation.” PAGEID #850. 

The Ohio Department of Rehabilitation and Correction Bureau

of Medical Services utilizes a diet formulary protocol the

purpose of which “is to establish standardized guidelines,

language, ordering procedures, and to specify the approved types

of diets when ordering of therapeutic diets and liquid

supplements for patients requiring nutrition intervention to

treat medical conditions.” See Defendants’ Reply, Attachment 1

(intended as Exhibit LL to Plaintiff’s Response). This protocol

recognizes several therapeutic diets but does not specifically

recognize a “low residue” diet. Id. at pp. 3-6. The version of

the protocol provided here has a revision date of February 19,

2009 and an effective date of March 3, 2009. Id. at p. 1. 

The protocol addresses requests for non-formulary diets as

follows:

C. Non-Formulary Diets

1. A nurse of ALP will refer all non-formulary

diet orders to the nutrition services person for

review.

2. Non-formulary diet orders from non-DRC

facilities are considered to be recommendations and

shall be reviewed by the DRC Dietary Operations Manager

and the DRC Medical Director prior to implementation.

3. The dietitic technician shall contact the

Dietary Operations Manager in writing listing the

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patient name, number, Diet Order (DRC5002) and reason

documented for diet order.

4. The Dietary Operations Manager is responsible

for reviewing the written request and working with the

nutrition service person and the ALP to provide diet

alternatives that can be produced in DRC and that meet

the medical needs of the patient.

Defendants’ Reply, Attachment 1, pp. 6-7. 

There is no dispute that Mr. Hendricks was provided with a

“six meals diet” while housed at Belmont. Hendricks’

Declaration, ¶42. Under the diet formulary protocol, this diet

is described as follows

ii. Six Meals Diet

1) The diet provides the 3 meals and 3 snacks

each day to provide adequate calories for

patients who need to consume small amounts of

food more frequently.

2) The morning and afternoon snack shall consist

of 1 slice of bread, 2 ounces of cheese, 1

piece of fresh fruit or 1⁄2 cup of canned fruit

and 1 cup of beverage.

3) The evening snack shall be the same as a

regular HS snack (see the HS snack section,

2-b-vii, of this protocol).

The HS Snack is described in the protocol as follows: 

1) HS snacks maintain consistent carbohydrate

and protein levels throughout the night for

insulin-dependent diabetics and provide

additional calories for patients who have

difficulty maintaining adequate weight. HS

snacks shall be composed of:

a) 1 serving of starch - either 4 graham

crackers or 6 saltine crackers, or 1 slice of

bread.

b) 1 piece of fresh fruit or 1/2 cup of canned

fruit, and

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c) 2 tablespoons of peanut butter for a regular

HS snack or 2 tablespoons of jelly for a low

protein/RENAL snack. 

Defendant’s Reply, Attachment 1, pp. 5 and 6. Mr. Hendricks was

unable to consume some of the food in the snack bags. Hendricks

Declaration, ¶45. 

B. First Amendment Claim

With respect to Mr. Hendricks’ First Amendment claim, the

verified amended complaint alleges:

(29) During plaintiff’s stay at Belmont

Correctional Institution, he made several complaints

about his health and medical care.

(30) Plaintiff had been in contact with the Ohio

Justice & Policy Center; Americans Civil Liberties

Union; Crohn’s & Colitis Foundation of America; private

attorneys and physicians.

(31) On June 10, 2009, defendant Miller ordered,

and was present at the time, the seizure and

destruction of most of this material causing a delay in

filing this complaint. 

From his declaration, it appears that Mr. Hendricks 

intended to submit affidavits from two witnesses, a copy of his

notification of grievance form, and the decision of the chief

inspector. Hendricks Declaration, ¶¶46, 47. These documents

were not attached to his declaration as filed. Defendants have

submitted these documents in connection with their reply as

Attachment 2. According to the affidavits, two inmates observed

a corrections officer search and remove papers from Mr.

Hendricks’ legal box and then tear up these papers and throw them

away. Defendants’ Reply, Attachment 2, pp. 3-4. Both

affidavits also indicate that Warden Miller was “sitting on the

desk.” Id. According to the notification of grievance filed by

Mr. Hendricks on June 10, 2009, a correction officer searched his

legal box and “confiscated material/evidence crucial important

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for a civil litigation against BECI.” Id. at p.1. Further,

according to this grievance, “Warden Michele Miller ordered that

this evidence be destroyed and disposed of.” Id. The decision

of the chief inspector indicates a belief that the grievance was

directed to Warden Eberlin, denies it for failure to allege

Warden Eberlin’s personal involvement, and states that, to the

extent Mr. Hendricks is complaining about the actions of the

corrections officer, he failed to properly pursue the inmate

grievance procedure. Id. at p.2. 

III. Motion for Summary Judgment

In their motion for summary judgment, defendants argue that

Mr. Hendricks has failed to demonstrate their deliberate

indifference to his serious medical need. Further, they contend

that Mr. Hendricks’ has failed to exhaust his administrative

remedies relating to his retaliation claim against Warden Miller,

and that they are entitled to qualified immunity. They also

contend that Mr. Hendricks’ Eighth Amendment claim is barred by

the statute of limitations because, as they interpret his

allegations relating to this claim, December 24, 2010 was the

latest date by which he could have filed his complaint. 

With respect to Mr. Hendricks’ Eighth Amendment claim, the

defendants argue that there is no evidence in the file supporting

his claim that he has been diagnosed with Crohn’s disease. 

Regardless, however, they assert that Mr. Hendricks’

institutional records demonstrate that he has received

appropriate dietary accommodations. Defendants contend that any

continued distress Mr. Hendricks has suffered is a result of his

refusal to accept his diet passes and his commissary purchases of

spicy, seeded, or sugary foods and cigarettes, all of which are

items contraindicated for his digestive issues. 

In response, Mr. Hendricks takes issue with the defendants’

assertion that he has not been diagnosed with Crohn’s disease and

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devotes pages of his brief and his exhibits (as detailed above)

to establishing in excruciating detail the existence of this and

numerous other gastrointestinal conditions. However, in one

paragraph found on page 16 of his 25-page response, he describes

the nature of his Eighth Amendment claim as follows:

In this case, Plaintiff has offered evidence that

he endured pain and suffering while being denied the

prescribed low residue diet, notwithstanding the

absence of a tangible residual injury. The record

reflects that Plaintiff experienced severe pain,

bleeding, anemia, hypokalemia, and ultimately a

parastomal hernia resulting in surgical repair. 

Moreover, Plaintiff suffered this pain while being

denied a prescribed diet that would help to alleviate

these very problems which Defendants’ motion concedes

was prescribed on several occasions, however, they

offer no proof that it was followed or as to why this

was denied, other than the Declaration from Defendant

Nesbitt - one of the defendants directly involved in

the denial. 

See Response, p. 16. 

Further, Mr. Hendricks states on pages 17-18, 

In the case at bar, Defendants concede and

acknowledge the prescribed and needed low residue diet,

however they do not explain why this was interfered

with and/or denied by the Defendants. All Defendants

have done is point out that the low residue diet was,

in fact, needed and ordered. They have not submitted

any actual physical proof that this was actually

followed through with other than the Declaration from

Susan Nesbitt, one of the key defendants in this case,

stating that it was. Contrary to the Defendants

assertion that Plaintiff was provided a low residue

diet, the Defendants Declarations from Susan Nesbitt

and Mary Rousch, taken in conjunction with Exhibits “SW”, supra, and “LL” infra, actually shows that

Plaintiff was not provided with a low residue diet,

rather, he was provided a six small meal diet. This is

not the same as a low residue diet. Plaintiff submits

a copy of the Defendant’s own policy concerning “Diet

Formulary” which outlines a “six small meal” diet. It

should be noted that nowhere in this policy does it

even mention a low residue diet. Even parts of this

“six small meal” diet contained in the “snack bags”

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were not consumable by Plaintiff. 

With respect to the remaining issues raised by the motion

for summary judgment, Mr. Hendricks argues that the defendants

are not entitled to qualified immunity because they were under an

obligation to provide medically prescribed or necessary diets

under the stipulation in Fussell v. Wilkinson. Further, he

contends that, because his claim is limited to the time period

between February 20, 2009 and November, 2009, it is not barred by

the statute of limitations. Additionally, he contends that he

has exhausted his claim against Ms. Miller as evidenced by the

grievance he filed and the disposition of that grievance issued

by the chief inspector. With respect to the merits of his

retaliation claim, he contends that he has a “right to file nonfrivolous grievances and legal filings about mistreatment,” and

Ms. Miller’s destruction of his legal materials in retaliation

for doing so violates his First Amendment rights.

In reply, the defendants recognize that the Diet Formulary

Protocol does not specify a “low residue diet” and that,

consistent with this protocol, no such specific diet is available

at Belmont. However, they contend Mr. Hendricks’ records

indicate that they “made every attempt” to provide a diet that

met his needs. They argue that Mr. Hendricks has failed to raise

any genuine issue of material fact to the contrary. Further,

they contend that, after Ms. Nesbitt’s offer in February, 2009,

to schedule Mr. Hendricks for consultations with diet

technicians, he did not complain to any Belmont healthcare staff

about his diet. Additionally, they suggest that Mr. Hendricks’

commissary purchases indicate his failure to adhere to an

appropriate diet plan and reject as nonsensical his explanation

that he uses his commissary purchases to barter for food which he

can tolerate. Defendants continue to argue that Mr. Hendricks’

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claims are barred by the statute of limitations, they are

entitled to qualified immunity, and he has failed to exhaust his

retaliation claim against Ms. Miller.

IV. Analysis

Initially, the Court notes that because Mr. Hendricks has

specifically limited his claims to include only the time period

between February 20, 2009 and November, 2009, it will not

consider the statute of limitations argument raised by

defendants. His complaint was filed within two years of those

dates.

A. Eighth Amendment Claim

To establish an Eighth Amendment violation, a prisoner

must show that he or she has a serious medical condition and

that the defendants displayed a deliberate indifference to

his or her health. Estelle v. Gamble, 429 U.S. 97 (1976);

Wilson v. Seiter, 501 U.S. 294 (1991). This formulation has both

a subjective and an objective component. Objectively, the

medical condition at issue must be “serious” as opposed to

“trivial,” “minor,” or “insubstantial.” Subjectively, the

defendants accused of violating the Eighth Amendment must have

acted with a state of mind that can accurately be described as

“deliberate indifference.” Each of these components requires

some elaboration.

It is not always easy to distinguish serious medical

conditions from those that are not sufficiently substantial to

implicate the Constitutional prohibition against cruel and

unusual punishment, and the facts concerning the seriousness of

an inmate’s condition are frequently in dispute. In evaluating

such claims, courts have given weight to a variety of factors,

including whether the condition is one that a doctor or other

health care professional would find worthy of treatment, whether

it significantly affects everyday activities, and whether it

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causes (or, if left untreated, has the potential to cause)

chronic and substantial pain. See Chance v. Armstrong, 143 F.3d

688, 702-03 (2d Cir. 1998); see also Harrington v. Grayson, 811

F.Supp. 1221 (E.D. Mich. 1993)(focusing on the severity of the

condition, the potential for harm if treatment is delayed, and

whether such a delay actually caused additional harm). 

Under some circumstances, expert testimony may be needed to

establish the seriousness of a medical condition, particularly if

the inmate’s claim is founded upon an unreasonable delay in

treatment. See Napier v. Madison Co., Ky., 238 F.3d 739 (6th

Cir. 2001). In other cases, however, when the condition does not

involve “minor maladies or non-obvious complaints of a serious

need for medical care,” but rather “an obvious need for medical

care that laymen would readily discern as requiring prompt

medical attention by competent health care providers,” expert

testimony is not essential to a finding that a serious medical

condition is present. Blackmore v. Kalamazoo County, 390 F.3d

890, 898 (6th Cir. 2004).

As to the subjective element, in Farmer v. Brennan, 511 U.S.

825, 839 (1994), the Court adopted "subjective recklessness as

used in the criminal law" as the appropriate definition for

deliberate indifference. It held that "a prison official cannot

be held liable under the Eighth Amendment for denying an inmate

humane conditions of confinement unless the official knows of and

disregards an excessive risk to inmate health or safety. . . ."

Id. at 837. Officials must be aware of facts from which they

could conclude that a substantial risk exists and must actually

draw that conclusion. Id. Prison officials who know of a

substantial risk to the health or safety of an inmate are free

from liability if "they responded reasonably to the risk, even if

the harm ultimately was not averted." Id. at 844.

 Because an Eighth Amendment medical claim must be

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premised on deliberate indifference, mere negligence by a

prison doctor or prison official with respect to medical

diagnosis or treatment is not actionable under 42 U.S.C.

§1983. "[A] complaint that a physician has been negligent in

diagnosing or treating a medical condition does not state a

valid claim of medical mistreatment under the Eighth

Amendment. Medical malpractice does not become a

constitutional violation merely because the victim is a

prisoner." Estelle v. Gamble, 429 U.S. 97, 106 (1976); see

also Brooks v. Celeste, 39 F.3d 125 (6th Cir. 1994).

The Court will turn first to the objective component of this

claim - the existence of a serious medical condition. While the

parties may disagree on the precise diagnosis of Mr. Hendricks’

condition - whether ulcerative colitis or Crohn’s disease - the

fact that Mr. Hendricks’ suffered from a serious medical

condition is not at issue here. Nor could it be given the

extensive, history of Mr. Hendricks’ medical care demonstrated by

the parties’ exhibits and set forth at length above. Rather, the

focus of defendants’ motion for summary judgment is the

subjective component of an Eighth Amendment claim - whether they

acted with deliberate indifference in the face of Mr. Hendricks’

serious medical condition. Mr. Hendricks argues that because the

defendants did not provide what he considers to be a “low residue

diet” as ordered by various doctors outside Belmont, they have

acted with deliberate indifference resulting in his documented

pain and suffering. To the contrary, the defendants argue that,

although a “low residue diet” is not a diet specified under the

ODRC’s Diet Formulary Protocol, they made every attempt to

accommodate Mr. Hendricks’ dietary needs. The Court agrees with

the defendants. 

While the denial of a medically necessary diet may give rise

to deliberate indifference under certain circumstances, see

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Sellers v. Henman, 41 F.3d 1100 (7th Cir. 1994), Mr. Hendricks

has presented no such circumstances here. Further, while “a

prisoner who suffers pain needlessly when relief is available”

may be able to demonstrate deliberate indifference, see Gorley v.

Sullivan County Jail Medical Dept., 2012 WL 1565416 (E.D. Tenn.

April 30, 2012), Mr. Hendricks has not done so here. Mr.

Hendricks admits that he met with dietary staff at Belmont and

that dietary accommodations were made for him during his

incarceration at Belmont. Further, he does not dispute that he

was issued at least one diet pass stating that he should not be

given peanut butter, wheat bread, corn, raw vegetables or fruit

and that he refused this diet pass. 

Additionally, Mr. Hendricks provides no evidence of what he

considers to constitute a “low residue” diet nor does he explain

how the diet he received and a “low residue” diet differ. He has

attached to his declaration a three-page document detailing

nutrition therapy for Crohn’s disease and ulcerative colitis with

various notations directed to him, although there is nothing

indicating from whom he received this information. To the extent

that the Court may consider such information, it does not set

forth any specific “low residue” diet. Rather, it contains lists

of recommended and non-recommended foods and appears consistent

with various dietary accommodations provided to Mr. Hendricks. 

Mr. Hendricks offers nothing to rebut the defendants’

contention that they attempted to accommodate his diet within the

confines of the ODRC’s Diet Formulary Protocol. His desire for a

“low residue” diet rather than the six small meals diet provided

for him constitutes nothing more than a disagreement with the

treatment provided to him. Differences in judgment, however, are

insufficient to state a deliberate indifference claim. Estelle,

429 U.S. at 105-106. Similarly, to the extent Mr. Hendricks

believes that he should have been prescribed nutritional

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supplements, he fails to demonstrate deliberate indifference for

this very same reason. 

To the extent that Mr. Hendricks believes that his Crohn’s

flares and hernia surgery requiring hospitalization while he was

incarcerated at Belmont are clear evidence of defendants’

deliberate indifference, he is mistaken. It may be that, based on

Mr. Hendricks’ medical history, a reasonable trier of fact could

conclude that the defendants were aware that he faced a

substantial risk of additional harm in the way of flare-ups or

other gastrointestinal complications. However, as discussed

above, under Farmer, knowledge alone is not sufficient to

demonstrate deliberate indifference. Rather, Mr. Hendricks must

demonstrate that in the face of this knowledge, the defendants

disregarded the risk of further gastrointestinal complications or

failed to take reasonable measures to prevent them. This he has

failed to do. Mr. Hendricks simply has provided no evidence from

which a trier of fact could conclude that the defendants’

response, in the form of diet accommodations, was unreasonable,

let alone intentionally or recklessly calculated to cause him

harm. Absent any evidence of this sort, Mr. Hendricks has not

raised a genuine issue of material fact on the issue of

deliberate indifference sufficient to withstand the motion for

summary judgment. See Farmer, 511 U.S. 844. Consequently, the

Court will recommend that defendants’ motion for summary judgment

be granted as to Mr. Hendricks’ Eighth Amendment claim. 

 B. First Amendment Claim

Turning to Mr. Hendricks’First Amendment claim against Ms.

Miller, the Court notes first defendants’ argument that he has

not exhausted this claim. Mr. Hendricks disputes this assertion

and has provided copies of the grievance he filed against Ms.

Miller and the disposition of that grievance from the chief

inspector. In light of this evidence, Mr. Hendricks may have

raised a genuine issue of material fact on the issue of

exhaustion. However, because Mr. Hendricks’ claim clearly fails

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on its merits, the Court will not consider the issue of

exhaustion. See Woodford v. Ngo, 548 U.S. 81, 101 (2006)(the

PLRA exhaustion requirement is not jurisdictional and district

courts may “dismiss plainly meritless claims without first

addressing what may be a much more complex question, namely,

whether the prisoner did in fact exhaust available administrative

remedies.”)

To the extent that Mr. Hendricks intends to set forth a

retaliation claim against Ms. Miller, there is no question that

retaliation for the exercise of constitutional rights is itself a

violation of the Constitution. To state a retaliation claim, a

plaintiff must allege three elements: (1) that he or she was

engaged in protected conduct; (2) an adverse action was taken

against him or her that would deter a person of ordinary firmness

from continuing to engage in that conduct; and (3) the adverse

action was motivated at least in part by the plaintiff’s

protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th

Cir. 1999). Retaliation claims must include a “chronology of

events from which retaliation may plausibly be inferred.” Ishaaq

v. Compton, 900 F.Supp. 935 (W.D. Tenn. 1995), quoting Cain v.

Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988). The retaliatory

filing of a disciplinary charge or other negative actions strike

at the heart of an inmate’s constitutional right to seek redress

of grievances, so the injury to this right inheres in the

retaliatory conduct itself. Id. “An inmate has an undisputed

First Amendment right to file grievances against prison officials

on his own behalf.” Herron v. Harrison, 203 F.3d 410, 415 (6th

Cir. 2000).

 Assuming Mr. Hendricks could satisfy the first two elements

of his retaliation claim, he fails to provide any facts

establishing a causal connection between the filing of grievances

and the alleged destruction of his legal materials at the

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direction of Ms. Miller. It is well recognized that retaliation

is easy to allege and that it can seldom be demonstrated by

direct evidence. See Harbin–Bey v. Rutter, 420 F.3d 571, 580

(6th Cir. 2005); Murphy v. Lane, 833 F.2d 106, 108 (7th Cir.

1987). “[A]lleging merely the ultimate fact of retaliation is

insufficient.” Murphy, 833 F.2d at 108. “[C]onclusory

allegations of retaliatory motive ‘unsupported by material facts

will not be sufficient to state ... a claim under §1983.’ ”

Harbin–Bey, 420 F.3d at 580, quoting Gutierrez v. Lynch, 826 F.2d

1534, 1538–39 (6th Cir. 1987); see also Murray v. Unknown Evert,

84 F. App'x 553, 556 (6th Cir. 2003) (in complaints screened

pursuant to 28 U.S.C. § 1915A, “[c]onclusory allegations of

retaliatory motive with no concrete and relevant particulars fail

to raise a genuine issue of fact for trial”) (internal quotations

omitted); Lewis v. Jarvie, 20 F. App'x 457, 459 (6th Cir. 2001)

(“bare allegations of malice on the defendants' parts are not

enough to establish retaliation claims”). Mr. Hendricks makes no

allegations and provides no evidence from which a trier of fact

could conclude that Ms. Miller had any awareness of complaints he

had made or grievances he had filed such that this knowledge

motivated the alleged destruction of his legal materials. 

Consequently, the Court will recommend that summary judgment be

granted as to Mr. Hendricks’ retaliation claim. 

Finally, to the extent that Mr. Hendricks’ First Amendment

claim is intended as a denial of access to the courts claim,

summary judgment also is appropriate. In order to succeed on

such a claim, Mr. Hendricks must demonstrate actual prejudice to

underlying litigation. See Rodgers v. Hawley, 14 Fed.Appx. 403,

409 (6th Cir. 2001), citing Lewis v. Casey, 518 U.S. 343 (1996). 

In his verified amended complaint Mr. Hendricks alleges only a

delay in filing the complaint in this action. Mr. Hendricks has

not been prejudiced in pursuing this litigation by any delay in

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filing the complaint. Consequently, the Court will recommend

that the motion for summary judgment be granted as to any access

to the courts claim. 

V. Recommended Disposition

For the reasons stated above, it is recommended that the

defendants’ motion for summary judgment (#101) be granted. 

PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

 United States Magistrate Judge

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