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Grant v. Phillips


April 22, 1998


The opinion of the court was delivered by: Joseph E. Irenas, U.S.D.J



IRENAS, District Judge:

This matter comes before this Court on the motion of defendants Kevin Phillips, Jeff McCart, Wayne Rodney and Adam Truitt for summary judgment on plaintiff pro se Bobby Earl Grant's claim of cruel and unusual punishment. Jurisdiction is pursuant to 28 U.S.C. §§ 1331, 1343. For the reasons set forth below, this Court will grant the motion for summary judgment and dismiss Grant's Complaint as to all defendants.


Bobby Earl Grant is an inmate in the New Jersey prison system. He is a diabetic who receives insulin shots and requires a special diet. *fn1 At all times relevant to this action defendants Kevin Phillips and Wayne Rodney were employed as Corrections Lieutenants at Southern State Prison. Defendant Jeff McCart was a Corrections Sergeant. Defendant Adam Truitt was an Institutional Trade Instructor at Southern State. Grant was sent to Southern State from Bayside State Prison in April, 1995.

On October 30, 1995, Grant filed a complaint pursuant to 42 U.S.C. § 1983 alleging that since his arrival at Southern State he "ha[d] been refused the proper dietary snacks, and sugar free meals" often "enough to cause [him] great physical discomfort and mental discomfort." He alleges that on one occasion he complained to Sergeant McCart who treated the situation "as a jocular occurrence." Grant claims that he complained to Truitt -- whom Grant alleges oversaw food preparation at Southern State -- and that Truitt "became offensive in language," showed a "pugnacious disposition," and stated "that he was not concerned about an error here or there . . . and that [Grant] should get over [his] hunger pain and grin and bear it." Grant alleges that Lieutenant Phillips tore up one of Grant's submitted "remedy form[s]" and told him that his actions "would get [Grant] into serious trouble." Sergeant McCart is alleged to have "found this a humorous scenario." Grant claims that Sergeant Rodney failed to address his concerns during Rodney's tour of duty as the compound Sergeant. *fn2 Grant also contends that he was "advised through anonymous sources that [his] meals that once were sometimes overlooked, now are frequently late or do not come at all or turn up missing items, are a direct result of [his] making waves." (Compl. ¶ 4). Grant seeks protection from cruel and unusual punishment and other appropriate equitable and fair relief. (Compl. ¶ 5).

This Court initially dismissed Grant's Complaint because the facts as alleged did not rise to the level of deliberate indifference to Grant's serious medical needs. Grant v. Wilson, et al., Civ. No. 95- 5598 (JEI) (D.N.J. Oct. 30, 1995) (slip op.). Grant appealed. The Third Circuit vacated this Court's order and directed that an evidentiary hearing be held concerning Grant's status as a diabetic and the defendants' failure to meet his medical and nutritional needs. Grant v. Wilson, et al., No. 95-5850 (3d Cir. Nov. 16, 1996) (slip op.). Magistrate Judge Kugler attempted to conduct such a hearing on December 22, 1997. Grant made general allegations at this hearing to the effect that he did not like his insulin and was not receiving proper meals. He refused to articulate his complaints with specificity or clarity. He rambled on about his complaints to Janet Reno and a lack of family visits. *fn3 Grant's conduct prompted Magistrate Judge Kugler to order that Grant be deposed so that sense might be made of his claims. Grant was deposed on January 28, 1998. Defendants filed the instant motion for summary judgment on March 30, 1998.


"[S]ummary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). Where the moving party has carried its initial burden of demonstrating the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Idus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The non- moving party may not simply rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward with admissible specific evidence establishing a genuine issue of fact. See id. at 324.

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Idus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotes omitted).


To date Grant has not filed an opposition to the summary judgment motion. Notwithstanding that Grant thereby has failed to carry his burden of coming forward with specific evidence demonstrating that there exists a genuine issue of fact for trial, this Court has reviewed his Complaint and deposition testimony thoroughly in order to ensure that this failure on Grant's part will not result in the dismissal of a meritorious claim. Grant alleges that he was subjected to cruel and unusual punishment when he was incarcerated at Southern State. He claims that he did not receive a proper diabetic diet and that prison officials were deliberately indifferent to his needs in this regard. The Complaint involves only the time Grant was at Southern State. (Dep. of Bobby Earl Grant at 11). *fn4

The Eighth Amendment, made applicable to the states by the Fourteenth Amendment, prohibits the infliction of cruel and unusual punishment upon prison inmates. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). A prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be objectively sufficiently serious. Second, the official's state of mind must be one of deliberate indifference. Id. at 834. Deliberate indifference is more than malpractice or negligence; it requires that "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 837. Deliberate indifference to an inmate's serious medical needs falls within the scope of the Eighth Amendment's prohibition. Estelle v. Gamble, 429 U.S. 97, 104 (1976). More specifically, the denial of a medically required diet in certain circumstances may constitute an Eighth Amendment violation. Mandala v. Coughlin, 920 F. Supp. 342, 353 (E.D.N.Y. 1996) (citing cases).

Though Grant has claimed that he did not receive proper meals in his opinion, he testified in his deposition that he received a diabetic diet while at Southern State. (Dep. of Grant at 14-15, 18, 33-34). He also received proper insulin shots at Southern State. (Id. at 45). Grant agreed that he was getting food and meals every day. (Id. at 11- 12, 18, 19, 24). Although he has claimed that he missed snacks and meals and sometimes was given no food at Southern State, (id. at 23, 29, 31-32, 35-36), his testimony became confused and difficult to follow each time he was pressed on these claims. Moreover, Grant's testimony clearly reveals that what he often meant when he spoke of missed meals or a lack of food was that the food provided to him was not to his liking or did not constitute a proper diabetic meal in his opinion. (Id. at 12, 13, 17, 18). Indeed, Grant testified several times that he would refuse his meals if he felt they were improper. (Id. at 20, 23, 24, 25).

At no point has Grant explained with any degree of specificity what was wrong with his food from a medical standpoint. He says his meals did not comply with the "Federal Guidelines" and that he had read books which indicated to him he was getting the wrong food. (Id. at 11, 13, 18). In this vein he complained at different points about apples, cake, hot dogs and small squares of lasagna. Grant testified that his meals just did not provide enough food or the right food. (Id. at 11-13, 17- 18, 22). He refused one meal because it was undercooked. (Id. at 33- 34). He refused other food because he believed it was prepared by homosexuals. (Id. at 31-32). Grant testified that he could and did get food at the Southern State canteen. (Id. at 19, 45). As to the Complaint's allegation that his meals were being withheld because he had been "making waves," Grant testified that he did not remember making such a claim and that if he were to say it today it would be a lie. (Id. at 43-44).

Grant testified that on three occasions during his tenure at Southern State he experienced low blood sugar levels. He mentioned during his deposition that he went into a semi-coma once at Southern State, (id. at 20), but did not elaborate or restate that assertion when questioned more fully about his blood sugar levels. His testimony was that his three low sugar level incidents were caused by his being given an orange at night instead of half a sandwich. In each instance he went to the infirmary where he was given a snack to raise his blood sugar level. (Id. at 22, 39, 40). At the time he left Southern State, Grant was exercising by walking around the track five or six times, and Grant testified that he was in good health at Southern State. (Id. at 44). After leaving Southern State, Grant went to Eastern State Prison. He said his health was not in good shape there. (Id. at 44). He admitted not always taking his insulin at Eastern State. (Id. at 41-42). From Eastern State Grant went to Riverfront State Prison. When asked if his health at Riverfront had been good Grant said, "I would say no." Part of his problem was that he did not like the new insulin he was getting. (Id. at 45). As of the date of his deposition Grant had not taken his insulin for a week because he did not like it. (Id. at 43).

When all justifiable inferences are drawn in Grant's favor, the record supports findings that Grant occasionally did not receive meals he should have received at Southern State and that his frequent complaints sometimes were received rudely and with hostility. The record also demonstrates the following facts.

Grant has been incarcerated in the New Jersey prison system for most of his twenty diabetic years and thus has been under the medical care of the New Jersey Department of Corrections for most of that time. This medical care has included the supply and administration of daily insulin shots and the provision of special meals and snacks. Grant does not deny that this care has been provided, but he disagrees with the decisions concerning his diet. He formed unsupported opinions about what constitutes a proper snack or meal for a diabetic. In reliance on these opinions he refused to eat special food which had been prepared for him. Similarly, he now refuses to take his insulin because he does not "like" it.

Grant's Complaint alleges no more than "great" physical and mental "discomfort." He experienced no health problems at Southern State. He had a low blood sugar level on three occasions. Grant does not connect these instances of low blood sugar to any deliberate indifference on anyone's part; he says these instances occurred at night after he had received his insulin shot and after he had been given an orange as a snack. There is no evidence that it is unusual for a diabetic to experience low blood sugar three times in an eleven-month period. Nor is there evidence that Grant ever was incapacitated by the infrequent incidents of low blood sugar. On each of the three occasions when Grant's blood sugar level was low, his condition immediately was remedied by eating snacks in the infirmary. By his own account, Grant left Southern State in good health and physical condition. For an approximately sixty-five-year-old man who has been diabetic for the past twenty years, Grant at all times relevant to this action has been in impressively good health. *fn5

It must be borne in mind that Grant is alleging cruel and unusual punishment, which is deliberate indifference to serious medical needs. Estelle, 429 U.S. at 104. Nothing of this nature occurred here. Indeed, there is no evidence that Grant suffered any harm at all. We do not question that as a general matter prisoners with diabetes have "serious" medical needs. However, there is no evidence of deliberate indifference to those needs in this case. Id. Grant was given insulin shots, diabetic meals and snacks after his shots. Moreover, there is not a shred of evidence that the defendants knew of and disregarded any excessive risk to Grant's health. Farmer, 511 U.S. at 837. There were no objective indications that Grant was suffering in any objective sense, that his diabetes was not under control, that his health was at risk or that any harm was impending. If there was disregard on the defendants' part concerning Grant it was not a disregard for serious medical risks but rather was a disregard for Grant's apparently incessant subjective complaints about the quality and amount of food he was receiving. These prison officials' indifference to Grant's desire to have a menu of his choosing falls far short of cruel and unusual punishment. Cf. Goff v. Bechtold, 632 F. Supp. 697, 698 (S.D. W.Va. 1986) (prisoner cannot sustain action where he "merely harbors a different opinion than his custodians as to the correctness of his course of treatment"); Peterson v. Davis, 551 F. Supp. 137 (D. Md. 1982) (failure to treat condition to prisoner's satisfaction insufficient to state claim), aff'd, 729 F.2d 1453 (4th Cir. 1984).


As Grant was not subjected to cruel and unusual punishment during his time at Southern State (or -- to the extent his Complaint might be viewed as claiming a continuing Eighth Amendment violation -- at any time since) his § 1983 action must fail. Accordingly, the motion for summary judgment will be granted and Grant's Complaint will be dismissed in its entirety. This Court will enter an appropriate order on an even date herewith.

Dated: April 22, 1998


This matter having come before this Court on the motion of defendants Kevin Phillips, Jeff McCart, Wayne Rodney and Adam Truitt for summary judgment, this Court having received no opposition from the plaintiff, and having reviewed the defendants' brief and the plaintiff's deposition testimony; for the reasons set forth in an opinion issued on an even date herewith,

IT IS on this 22nd day of April, 1998,

ORDERED THAT defendants' motion for summary judgment is GRANTED and the Complaint as against all defendants is DISMISSED.


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