# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted November 21, 2018 *

Decided November 29, 2018

Before

J OEL M. FLAUM, Circuit Judge

DIANE S. SYKES, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 16-2218

LARRY G. HARRIS, Plaintiff-Appellant,

v

.

J ACKIE MILLER, et al., Defendants-Appellees

. Appeal from the United States District

Court for the Central District of Illinois.

No. 07-CV-3225

Harold A. Baker,
J udge

.

O R D E R

Larry Harris, an Illinois inmate, sued pr ison officials for violating the Eighth Amendment by serving him a soy-based diet th at he says harmed his health. Both sides moved for summary judgment. The district court concluded that Harris had not presented sufficient evidence suggesting that soy posed a known, substantial risk of harm to him. The judge then entered summ ary judgment in favor of the nonmedical

* We agreed to decide this case with out oral argument because the briefs and record adequately present the facts and le gal arguments, and oral argument would not significantly aid the court. See F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1 NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 16-2218 Page 2

defendants, and Harris voluntarily dismi ssed his remaining claims. Because Harris failed to furnish evidence upon which a reasonable fact-finder could conclude that the nonmedical defendants knew (or recklessly disregarded) that his diet caused him
serious medical issues, we affirm.

On appeal from cross-motions for su mmary judgment, we view each motion separately and draw all reasonable infere nces in favor of the nonmoving party. Black

Earth Meat Mkt.

, LLC v. Village of Black Earth , 834 F.3d 841, 847 (7th Cir. 2016). We turn first to the defendants’ motion for summary judgment.

About 15 years ago, Illinois prisons began serving inmates a diet largely based on processed soy protein. Harris was incarcerat ed at Menard Correctional Center at this time, but he mostly ate food that he pu rchased from the prison’s commissary. About three years later, however, long lockdowns at Menard prevented Harris from accessing the commissary, and he began eating the soy-based meals. Shortly thereafter in May 2006, Harris went to the hospital after his he artrate slowed and his breathing became labored. To address his medical issues, a doctor placed a pacemaker in his chest. Similar problems arose after he ate a taco meal at the prison two months later, leading to a second hospital visit. At both visits his trea ting physicians told Harris to stop eating the soy-based food.

Harris used the prison’s grievance process to alert prison officials to his concerns about soy. In his grievances he raised three ma in points. First, he said that his hospital doctors had blamed his hospital visits on th e soy meals. Second, he asserted that when he eats a soy-based meal, he has shortness of breath, stomach swelling, and indigestion. Third, he reported that when he avoided these meals for three months, he lost over 20 pounds. In response to this information, a nurse conducted allergen tests for soy. The tests showed that Harris did not have a soy allergy and could safely consume it. Harris, however, continued to press for a soy-free diet based on his asserted “hypersensitivity”
to soy.

This lawsuit followed. It raises the claim that by serving him a soy diet, prison officials violated the Eighth Amendment. In December 2008, about a year and a half after Harris filed the suit, the prison placed him on a soy-free diet. Although the record does not establish why the prison did so, Harris speculates that the change occurred

because he submitted to the district cour t the August 2008 results of a doctor’s examination pulled from his medical records. This doctor wrote that Harris’s cardiacNo. 16-2218 Page 3

issues likely resulted from an undiagno sed thyroid deficiency, which the doctor thought the prison’s soy-based diet may have caused or exacerbated.

The judge consolidated Harris’s case with similar cases brought by other inmates and recruited attorneys for the plaintiffs. Be cause none of the plaintiffs had a known soy allergy, the judge limited his analysis to the general risk of harm posed by soy in the prison diet. After receiving reports from experts who without contradiction described the ubiquity of soy in the America n diet, the judge concluded that “society today simply does not see soy protein as a risk to the general population, much less a serious risk.” He then entered summary judg ment on the Eighth Amendment claim in favor of the nonmedical defendants. The judge later asked the plaintiffs which, if any, claims remained. Counsel replied that only retaliation and negligen ce claims remained, and the plaintiffs asked the judge to dismi ss those claims, which he did. Only Harris appeals, and only the entry of summary judgment on the Eigh th Amendment claim against the nonmedical defendants is before us. See Hoffman v. Knoebel , 894 F.3d 836, 840 (7th Cir. 2018).

Harris argues that the judge improperly entered summary judgment because the record contains some evidence that soy ca used his medical problems. We may assume

that Harris is correct and that soy harmed him; his claim fails nonetheless. To survive summary judgment on his Eighth Amend ment claims against the nonmedical defendants, some evidence must suggest that during the time that they provided Harris with soy meals, they knew (or recklessly di sregarded) that the meals would harm him.

See Farmer v. Brennan , 511 U.S. 825, 837 (1994). Harris relies on his grievances, which he argues alerted the nonmedical defendants to th e opinions of the hospital’s doctors that soy made him sick.

For three reasons Harris’s grievances do not provide a basis fo r finding that the

nonmedical defendants acted with deliberate indifference. First, prison administrators responded to those grievances reasonably by having a nurse test Harris for soy allergies. Nonmedical administrators may rely on the judgment of medical professionals. See Arnett v. Webster , 658 F.3d 742, 755 (7th Cir. 2011). And that judgment, based on the results of the allergy test, wa s that Harris had no soy sensitivities. The defendants thus permissibly accepted that Harris was not allergic to soy and did not require a soy-free diet. Second, the ostensib le conflict that Harris cites—between the results of the allergy test and the opinions of the hospital doctors—does not help him. When two reasonable medical opinions conflic t, a prison administrator does not violate the Eighth Amendment by relying on one of them. See Norfleet v. Webster , 439 F.3d 392,No. 16-2218 Page 4

396–97 (7th Cir. 2006). Finally, within a few mont hs of a prison doctor opining that Harris should receive a soy-free diet, prison administrators arranged one for him. And no evidence suggests that the modest time it took the administrators to arrange for his special diet reflects deliberate indifference.

Based on this record, the judge correctly ruled on the cross-motions for summary judgment. Because when construed in Harris ’s favor, the evidence would not permit a

fact-finder to rule that the nonmedical de fendants recklessly disregarded his medical health, the judge correctly granted their mo tions on the Eighth Amendment claim. It necessarily follows that when we construe the evidence against Harris, the judge correctly denied his cross-motion for summary judgment on the same Eighth

Amendment claim.

Harris also contends that he received ineffective assistance of counsel. But
because this is a civil case, Harris had no right to effective assistance of counsel. See Stanciel v. Gramley , 267 F.3d 575, 581 (7th Cir. 2001).

AFFIRMED