Dontrell L. Gordon, Sr. v. Pam Shurpit

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 24, 2023*
Decided November 7, 2023
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-1158
DONTRELL L. GORDON, SR.,
Plaintiff-Appellant,
v.
PAM SHURPIT,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 20-CV-1541
William E. Duffin,
Magistrate Judge.
O R D E R
Dontrell Gordon, a former Wisconsin inmate, appeals the summary judgment
rejecting his claim that the prison’s food-service administrator acted with deliberate
indifference in violation of the Eighth Amendment, when she ignored his complaints
about the food he was receiving. See 42 U.S.C. § 1983. We affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-1158 Page 2
While imprisoned at Dodge Correctional Institution for several months in 2020,
Gordon—according to his verified complaints—began writing to the food-service
department to complain about being served food that was either spoiled or
incompatible with his low-fiber diet. Pam Shurpit, the prison’s food-service
administrator, denied receiving any such correspondence. Gordon eventually filed an
Inmate Complaint with the prison, asserting that his meals did not comport with his
diet. An investigator confirmed with Shurpit that Gordon had been receiving the correct
meals, and the warden dismissed the complaint. Gordon later raised the concerns about
his food on three “Interview/Information Request” forms, the formal means by which
inmates can communicate with officials at Dodge.
Invoking the Eighth Amendment, Gordon then sued Shurpit and several other
officials at Dodge for deliberate indifference in ignoring his complaints about spoiled
food and failing to accommodate his low-fiber diet. After Gordon amended his
complaint twice, the court screened it under 28 U.S.C. § 1915A(a), dismissed all
defendants except for Shurpit, and permitted him to proceed only on the claim that
Shurpit knew he was receiving spoiled food and did not take action to resolve the issue.
Later, a magistrate judge, proceeding with consent under 28 U.S.C. § 636(c), entered
summary judgment for Shurpit. The judge concluded that Gordon submitted no
evidence that Shurpit knew he was receiving spoiled food.
On appeal, Gordon asserts that he did introduce such evidence—through prior
correspondence with Shurpit (he furnishes no further details) and records of his daily
use of Pepto Bismol, which, he maintains, proves that he received food that was not
good for his stomach. But even if we accept as true the statements in Gordon’s verified
complaints1 that he contacted the food-service department about spoiled food, he
produced no evidence that Shurpit ever knew about this correspondence. True, he sent
one Interview/Information Request form directly to her, but that form addressed only
his concerns about his diet. And although another form complained of spoiled food, he
1 Gordon’s original and second amended complaints were verified because
Gordon signed them under penalty of perjury. Ford v. Wilson, 90 F.3d 245, 247 (7th Cir.
1996). We treat verified complaints as affidavits and allow them to serve as evidence for
purposes of summary judgment. Jones v. Van Lanen, 27 F.4th 1280, 1285 (7th Cir. 2022).
And even though the original verified complaint was no longer operative for pleading
purposes, the factual allegations within it remained admissible for evidentiary
purposes. Beal v. Beller, 847 F.3d 897, 901–02 (7th Cir. 2017).

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No. 23-1158 Page 3
directed that form to a different department, and there is no suggestion in the record
that Shurpit received it. Without relevant evidence, no jury could conclude that Shurpit
knew of and disregarded a risk to Gordon. See Farmer v. Brennan, 511 U.S. 825, 837
(1994). Nor could a jury infer, based only on Gordon’s use of Pepto Bismol, that Shurpit
must have known of a risk of spoiled food. Cf. id. at 842–43 (suggesting that a jury could
infer knowledge if the risk were sufficiently obvious or pervasive).
To the extent Gordon believes that the district court disregarded his claim that
Shurpit acted with deliberate indifference by changing his low-fiber diet, this claim was
beyond the scope of the court’s screening order. In that order, the court explained that
Gordon’s second amended complaint—which addressed only the matter of spoiled
food—superseded all other claims from his original complaint. See Riley v. Elkhart Cmty.
Schs., 829 F.3d 886, 890 (7th Cir. 2016). In any event, Gordon offers nothing to counter
the district court’s determination that his own submissions show that the foods he
received—white rice, green beans, and applesauce—complied with his low-fiber diet.
AFFIRMED

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