Hall-Bey v. Cohn
Hall-Bey v. Cohn
Opinion of the Court
ORDER
Ervin R. Hall-Bey, a diabetic Muslim confined at Indiana’s Maximum Control
Hall-Bey argues that the defendants were deliberately indifferent to his diabetes when they failed to provide him the “2800 calorie ADA no pork diet” prescribed by the prison physician. For these defendants to be liable, however, they must have knowingly disregarded an excessive risk to Hall-Bey’s health. Boyce v. Moore, 314 F.3d 884, 888 (7th Cir. 2002). The defendants did provide Hall-Bey with a diabetic diet, but four or five times in a five-week cycle the diet included a pork entree. Hall-Bey did not dispute that the diet he was given would have adequately protected his health had he chosen to eat the pork, and since he has abandoned his First Amendment claim on appeal, we ascribe no constitutional significance to his refusal to eat pork.
Moreover, in opposing the defendants’ motion for summary judgment, Hall-Bey never responded to the defendants’ evidence that he would still have received an adequate level of calories had he chosen to “eat around” the pork entree on the infrequent occasions when it was served as part of his diabetic diet. Therefore, even if Hall-Bey had a right to avoid eating pork, it is undisputed that he did not face an excessive risk of harm to his health from the diet provided by the defendants. Boyce, 314 F.3d at 888.
AFFIRMED.
. We presume from Hall-Bey’s submissions in the district court that he does not eat pork due to his religious beliefs. The defendants’ refusal to provide Hall-Bey an alternative to pork in the diabetic diet states a free exercise claim under the First Amendment. See Hunafa v. Murphy, 907 F.2d 46, 47 (7th Cir. 1990) (recognizing a First Amendment claim when inmates are forced to choose between "adequate nutrition and observance of the tenets of his faith”). However, Hall-Bey has gone to great lengths on appeal to avoid discussing his religious convictions or the district court’s ruling on his First Amendment claim and has therefore waived review of the issue. See Hojnacki v. Klein-Acosta, 285 F.3d 544, 549 (7th Cir. 2002) (party waives argument that it fails to develop on appeal); Provident Savings Bank v. Popovich, 71 F.3d 696, 699-700 (7th Cir. 1995) (pro se appellants are subject to the same waiver rules as represented parties and may therefore waive issues by failing to raise them).
Reference
- Full Case Name
- Ervin R. HALL-BEY v. Edward L. COHN
- Cited By
- 2 cases
- Status
- Published