UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

ROBERT L. HOLLEMAN, )

)

Plaintiff, )

) CAUSE NO. 2:14-CV-019 PS 

vs. )

)

JOHN BUNCICH, et al., )

)

Defendants. )

OPINION AND ORDER

Robert L. Holleman, a pro se prisoner, filed a complaint under 42 U.S.C. § 1983. (DE 1.) 

Pursuant to 28 U.S.C. § 1915A, I must review the complaint and dismiss it if the action is

frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A(a), (b). To survive

dismissal, a complaint must contain enough to state a claim for relief that is plausible on its face

and raise the right to relief above the speculative level. Bissessur v. Indiana Univ. Bd. of Trs.,

581 F.3d 599, 602-03 (7th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. at 602 (internal quotation marks omitted). Thus, “a plaintiff must

do better than putting a few words on paper that, in the hands of an imaginative reader, might

suggest that something has happened to her that might be redressed by the law.” Swanson v.

Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original). Nevertheless, I must

bear in mind that “[a] document filed pro se is to be liberally construed, and a pro se complaint,

however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation and quotation

marks omitted). 

According to the complaint, Holleman is an inmate within the Indiana Department of

Correction (“IDOC”). In 2007, he was diagnosed with celiac’s disease by a doctor at Wabash

Valley Correctional Facility (“Wabash Valley”). Because celiac’s patients cannot eat foods

containing gluten, he was placed on a no-gluten diet at Wabash Valley. In September 2013,

Holleman was temporarily housed at the Lake County Jail so he could attend a court hearing

pertaining to a state petition for post-conviction relief. Prior to his arrival, he sent a letter to John

Buncich, the Sheriff of Lake County, to alert him that he had specific dietary needs due to

celiac’s disease. He explained that he could not eat any wheat products, submitted a memo

related to the foods he could eat, and attached a copy of his current diet card. 

On September 3, 2013, Holleman was taken to the jail. Shortly after his arrival, he was

served a tray for dinner consisting almost entirely of things he could not eat, including sausage,

bread, potatoes, and cookies. He explained his dietary restrictions to the officer delivering the

trays. Holleman claims the officer “got smart with [him]” (DE 1 at ¶ 7) and left the tray, but then

later returned with a different tray containing some type of rice casserole. Holleman explained

that he could not eat the rice casserole, either. Shortly thereafter, Holleman was taken to see a

nurse and he explained his dietary restrictions to her. Nevertheless, he claims that over the

course of the next three days, he was repeatedly served trays of food containing mostly items he

could not eat. As a result, he often went without meals or ate very little of what was provided. 

Holleman claims that during this period he complained to a jail guard, Officer Mattingley

(first name unknown) about his meals, but the officer was rude to him and dismissive of his

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problem. He claims that on September 5, 2013, he told another officer escorting him to court

about the meal problem, and the officer told him he would “write out a complaint for him” (DE 1

at ¶ 21), but Holleman does not know whether he ever did. On the afternoon of September 6,

2013, Holleman was taken to see the jail doctor, Dr. William Forgey. After Holleman explained

his diagnosis, the doctor said that he understood Holleman’s dietary restrictions, and he agreed

that Holleman could not eat many of the foods regularly served by the jail, including the rice

casserole he had been given. The doctor told Holleman that he had spoken with his brother-inlaw earlier that day, who had called to express concern about Holleman’s dietary needs. The

doctor promised to provide Holleman with an appropriate diet. 

That evening, however, Holleman was again given the rice casserole, which he claims he

could not eat. Two officers attempted to obtain some different food for Holleman from the jail

kitchen, but for unknown reasons they were unable to do so. Sometime after dinner, a mental

health worker visited Holleman and told him that Sheriff Buncich sent her because of the phone

call from Holleman’s brother-in-law earlier that day. Despite speaking with this individual and

filing a grievance about his diet the following day, on September 8, 2013, and September 9,

2013, he still received meals consisting mainly of foods he could not eat. On September 9, 2013,

Holleman left the jail and returned to the custody of the IDOC.

In addition to the problem with the food, Holleman claims that he was housed under

substandard conditions during his time at the jail. Specifically, he asserts that the jail was filthy,

excessively cold, smelled of feces, and was significantly overcrowded, requiring him to sleep on

a concrete slab on the floor for several nights, which aggravated a prior back injury. Based on

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these events, Holleman sues several individuals, including Dr. Forgey, Sheriff Buncich, and

various staff at the jail, asserting the denial of his Eighth Amendment rights.

In evaluating an Eighth Amendment claim, courts conduct both an objective and a

subjective inquiry. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective prong asks

whether the alleged deprivation is “sufficiently serious” so that “a prison official’s act results in

the denial of the minimal civilized measure of life’s necessities.” Id. (internal quotation marks

omitted). Although “the Constitution does not mandate comfortable prisons,” Rhodes v.

Chapman, 452 U.S. 337, 349 (1981), inmates are entitled to be provided with adequate food,

clothing, bedding, and sanitation. Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009); Gillis v.

Litscher, 468 F.3d 488, 493 (7th Cir. 2006); Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir.

1996). On the subjective prong, the prisoner must show the defendant acted with deliberate

indifference to his health or safety. Farmer, 511 U.S. at 834. As the Seventh Circuit has

explained:

[C]onduct is deliberately indifferent when the official has acted in an intentional or

criminally reckless manner, i.e., the defendant must have known that the plaintiff

was at serious risk of being harmed and decided not to do anything to prevent that

harm from occurring even though he could have easily done so.

Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (internal citations and quotation marks

omitted); see also Reed v. McBride, 178 F.3d 849, 855 (7th Cir. 1999) (where inmate

complained about severe deprivations but was ignored, he established a “prototypical case of

deliberate indifference”). 

Inmates are also entitled to adequate medical care. Estelle v. Gamble, 429 U.S. 97, 104

(1976). To establish liability, a prisoner must satisfy both an objective and subjective component

by showing: (1) his medical need was objectively serious; and (2) the defendant acted with

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deliberate indifference to that medical need. Farmer, 511 U.S. at 834. A medical need is

“serious” if it is “one that has been diagnosed by a physician as mandating treatment or one that

is so obvious that even a lay person would perceive the need for a doctor’s attention.” Greeno v.

Daley, 414 F.3d 645, 653 (7th Cir. 2005). For a medical professional to be held liable for

deliberate indifference, he or she must make a decision that represents “such a substantial

departure from accepted professional judgment, practice, or standards, as to demonstrate that the

person responsible actually did not base the decision on such a judgment.” Jackson v. Kotter,

541 F.3d 688, 697 (7th Cir. 2008). 

Here, Holleman asserts that he needed a special diet because of a medically diagnosed

condition. He claims that despite being made personally aware of his need for a special diet, both

Sheriff Buncich and Dr. Forgey failed to take adequate steps to ensure that his dietary needs

were met. As a result, he went without meals or had inadequate food for several days, causing

him to lose almost ten pounds during the six days he was at the jail. Giving him the inferences to

which he is entitled at this stage, he has alleged a plausible deliberate indifference claim against

these defendants.1

Holleman also seeks to sue “Jane Doe #1,” Sheriff Buncich’s secretary, whom he claims

falsely assured his brother-in-law that his dietary needs were being met. Holleman has not stated

a constitutional claim against this defendant. “Section 1983 does not establish a system of

1 I note that Holleman misidentifies Sheriff Buncich as the jail warden throughout his

complaint. It is not entirely clear whether Holleman contacted Buncich by name with his concerns

about the food, or whether he contacted the jail warden. In light of his pro se status, and giving his

complaint liberal construction, he has alleged enough to proceed further against Sheriff Buncich.

If this defendant was sued in error, however, Holleman is free to seek leave to file an amended

complaint that names the jail warden in place of Sheriff Buncich, or adds the warden as a defendant

if both individuals were involved in these events.

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vicarious responsibility.” Burks v. Raemisch, 555 F.3d 592, 593 (7th Cir. 2009). The secretary

was responsible for answering the phone; she cannot be held responsible for the failure of other

jail staff to provide Holleman with adequate meals. As the Seventh Circuit has explained:

Bureaucracies divide tasks; no prisoner is entitled to insist that one employee do

another’s job. The division of labor is important not only to bureaucratic

organization but also to efficient performance of tasks; people who stay within their

roles can get more work done, more effectively, and cannot be hit with damages

under §1983 for not being ombudsmen. [The] view that everyone who knows about

a prisoner’s problem must pay damages implies that [a prisoner] could write letters

to the Governor of Wisconsin and 999 other public officials, demand that every one

of those 1,000 officials drop everything he or she is doing in order to investigate a

single prisoner’s claims, and then collect damages from all 1,000 recipients if the

letter-writing campaign does not lead to better medical care. That can’t be right. 

Id. at 595. Here, the secretary did not cause the problem with the meals, nor is there anything to

indicate she stood in the way of its resolution. “The most one can say is that [she] did nothing,

when she might have gone beyond the requirements of her job and tried to help him.” Id. at 596.

This does not state a claim under § 1983, since “public employees are responsible for their own

misdeeds but not for anyone else’s.” Id. Accordingly, Jane Doe #1 will be dismissed as a

defendant.

Holleman also seeks to sue “Jane Doe #2,” whom he identifies as the food service

director at the jail. He does not mention this individual in the narrative section of the complaint,

and there is no basis to plausibly infer that she had direct personal involvement in these events. It

appears Holleman is trying to hold her liable because she is responsible for overseeing

operations in the kitchen, but there is no general supervisory liability under Section 1983. As the

Seventh Circuit has explained, a supervisor must be personally involved in the misconduct of his

or her subordinates in order to be held liable for the violation of a plaintiff’s constitutional rights. 

Chavez v. Illinois State Police, 251 F.3d 612, 651 (7th Cir. 2001). Mere negligence in failing to

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discover and prevent a subordinate’s misconduct is not enough. Id. “The supervisors must know

about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they

might see. They must in other words act either knowingly or with deliberate, reckless

indifference.” Id. Here, Holleman does not allege, nor is there a basis in the complaint to

plausibly infer, that Jane Doe #2 had direct personal knowledge of his dietary restrictions and

disregarded them, or otherwise turned a blind eye to his dietary needs. Instead, the only

allegation pertaining to her is that she was responsible for the oversight of the jail food service.

This does not state a plausible claim for relief for the reasons stated, and she will be dismissed as

a defendant.

Holleman also seeks to sue two members of the correctional staff, Officer Mattingley, the

officer who was rude to him when he spoke with him over the intercom about the problem with

his meals, and an unknown sergeant who supervised the correctional staff on Holleman’s

cellblock. As discussed above, it is apparent from the complaint that Holleman was seen by a

nurse and a doctor during this period, and as a non-medical staff member, Officer Mattingley

was entitled to defer to medical staff regarding what type of diet Holleman needed. See Burks,

555 F.3d at 595. His rude comments and insensitivity might be considered unprofessional, but

they do not give rise to a constitutional claim. DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.

2000) (observing that verbal harassment or rude comments by prison staff do not constitute cruel

and unusual punishment); Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir. 1987) (observing that

conduct does not violate the Constitution simply because it is unprofessional). As to the

unknown sergeant, Holleman appears to be trying to hold him responsible because he supervised

correctional staff on the cellblock. As explained above, however, the sergeant cannot be held

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vicariously liable for the actions of his subordinates. Chavez, 251 F.3d at 651. Furthermore, as

non-medical staff, he too would be entitled to defer to medical staff regarding the diet Holleman

should be served. See Burks, 555 F.3d at 595. Accordingly, these two individuals will be

dismissed as defendants. 

As noted above, Holleman also claims that he was denied proper bedding, heat, clothing,

and sanitation during his six days at the jail. It appears he is trying to hold Sheriff Buncich

responsible in connection with this claim. For the reasons discussed above, Sheriff Buncich

cannot be held liable solely because he is the official responsible for overseeing operations at the

jail. Chavez, 251 F.3d at 651. Giving the complaint liberal construction, however, it can be read

to allege that Holleman complained to Sheriff Buncich about these issues and/or that the

problems were so significant they would have been obvious to him when he was working at the

jail. Vinning-El v. Long, 482 F.3d 923, 924-25 (7th Cir. 2007) (observing that deliberate

indifference can be established through circumstantial evidence, by showing that the conditions

would have been obvious to prison personnel “working in the vicinity”). He will be permitted to

proceed on a conditions of confinement claim against Sheriff Buncich.

For these reasons, the court:

(1) GRANTS the plaintiff leave to proceed against John Buncich and Dr. William

Forgey for monetary damages in their individual capacities for failing to provide him with his

medically prescribed diet in violation of the Eighth Amendment;

(2) GRANTS the plaintiff leave to proceed against John Buncich for monetary damages

in his individual capacity for failing to provide him with adequate bedding, clothing, heat, and

sanitation in violation of the Eighth Amendment;

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 (3) DISMISSES Jane Doe #1, Jane Doe #2, Officer Mattingley, and Sergeant John Doe

#1 as defendants; 

(4) DISMISSES any and all other claims contained in the complaint;

(5) DIRECTS the United States Marshals Service to effect service of process on John

Buncich and Dr. William Forgey pursuant to 28 U.S.C. § 1915(d); and

(6) ORDERS John Buncich and Dr. William Forgey to respond, as provided for in the

FEDERAL RULES OF CIVIL PROCEDURE, only to the claims for which the plaintiff has been

granted leave to proceed in this screening order.

SO ORDERED.

ENTERED: April 15, 2014. s/ Philip P. Simon

PHILIP P. SIMON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

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