United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE.
Earl Nelson, who is currently serving a sentence at Milwaukee
County House of Correction (HOC) and representing himself,
filed a complaint under 42 U.S.C. § 1983, alleging that
his civil rights were violated. This matter comes before the
court on Plaintiff's motion for leave to proceed without
prepaying the full filing fee. ECF No. 2.
to Proceed without Prepayment of the Filing Fee
is required to pay the $400.00 filing fee for this action,
which includes the $350.00 statutory filing fee and a $50.00
administrative fee. See 28 U.S.C. § 1915(b)(1).
If a prisoner does not have the money to pay the filing fee,
he can request leave to proceed without prepayment of the
full filing fee. In that case, the prisoner plaintiff
proceeding in forma pauperis is required to pay the
full amount of the $350.00 statutory filing fee but not the
$50.00 administrative fee. See 28 U.S.C. §
1915(b)(1). Plaintiff has filed a certified copy of his
prison trust account statement for the six-month period
immediately preceding the filing of his complaint, as
required under 28 U.S.C. § 1915(a)(2), and has been
assessed and paid an initial partial filing fee of $5.60.
Plaintiff's motion for leave to proceed without prepaying
the filing fee will be granted.
of the Complaint
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b). A claim is legally frivolous when it lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The
complaint must contain sufficient factual matter “that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The court accepts
the factual allegations as true and liberally construes them
in the plaintiff's favor. Turley v. Rednour, 729
F.3d 645, 651 (7th Cir. 2013). Nevertheless, the
complaint's allegations “must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
of the Complaint
filed this complaint against Aramark Food Service, Food
Service Director Ryan, Supervisor Prycilla, Supervisor Zaria,
and Supervisor Megan. He alleges that on several occasions
the food carts used by Aramark to deliver food to the HOC
have arrived with black mold inside of the food compartment
and on top of the cart. He alleges that Director Ryan and his
staff sent these carts on Aramark's behalf. Plaintiff
states that he followed HOC procedure and submitted
complaints about the food carts through a designated kiosk on
February 17, 18, and 27, 2018, and he states that, on one
occasion, two correctional officers observed the mold on the
food carts and took pictures of it. On March 23, 2018,
Plaintiff alleges that he filed another complaint, this time
through HOC's normal grievance system. This complaint was
referred to Aramark on March 26, 2018, and on April 9, 2018,
he received a response-apparently from Director
Ryan-explaining that Aramark has a policy of cleaning the
carts after each use. In part, the response allegedly stated,
“Aramark has a cleaning schedule that we follow.”
Plaintiff alleges that the presence of black mold on these
food carts creates a serious risk to his health and that of
state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must allege that: (1) he was deprived of a right
secured by the Constitution or laws of the United States; and
(2) the deprivation was visited upon him by a person or
persons acting under color of state law.”
Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du
Lac, 384 F.3d 856, 861 (7th Cir. 2004)). The conditions
of confinement in a jail can violate the Eighth
Amendment's prohibition on cruel and unusual punishment
when “(1) there is a deprivation that is, from an
objective standpoint, sufficiently serious that it results
‘in the denial of “the minimal civilized measure
of life's necessities, ”' and (2) where prison
officials are deliberately indifferent to this state of
affairs.” Gray v. Hardy, 826 F.3d 1000, 1005
(7th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S.
825, 834 (1994)). As a result, the Seventh Circuit has held
that “[t]he Constitution mandates that prison officials
provide inmates with ‘nutritionally adequate food that
is prepared and served under conditions which do not present
an immediate danger to the health and well-being of the
inmates who consume it.'” Smith v. Dart,
803 F.3d 304, 312 (7th Cir. 2015) (quoting French v.
Owens, 777 F.2d 1250, 1255 (7th Cir. 1985)). At the same
time, “[j]ail conditions ‘may be uncomfortable,
even harsh, without being inhumane.'” Estate of
Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017)
(quoting Rice ex rel. Rice v. Corr. Med. Servs., 675
F.3d 650, 664-65 (7th Cir. 2012)).
fact that Nelson does not allege that he suffered any
physical injury from eating food that was contaminated or
unhealthy does not preclude him from going forward, at least
for now. The Seventh Circuit has characterized as fallacious
the “apparent assumption that creation of a mere hazard
to health, as opposed to an actual impairment of health, can
never be a harm sufficient to support an Eighth Amendment
violation.” Thomas v. Illinois, 697 F.3d 612,
614 (7th Cir. 2012). It is true that the Prison Litigation
Reform Act, 42 U.S.C. § 1997e(e), provides that
“[n]o Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility,
for mental or emotional injury suffered while in custody
without a prior showing of physical injury.” The
Seventh Circuit has also held, however, that even though
§ 1997e(e) bars recovery of compensatory damages for a
mental or emotional injury, it does not bar recovery of other
types of damages, such as nominal or punitive damages, or
other types of relief, such as injunctive relief.
Thomas, 697 F.3d at 614 (noting that
“‘physical injury . . . is not a filing
prerequisite for the federal civil action itself' because
the prisoner can still obtain injunctive relief, nominal
damages, and punitive damages” (first alteration in
original; citation omitted) (quoting Calhoun v.
DeTella, 319 F.3d 936, 940 (7th Cir. 2003))).
establish liability under § 1983, a plaintiff must also
show that the defendant was acting under color or state law.
Although Aramark is a private company, it can be held liable
under § 1983 as a state actor to the extent that it has
assumed the County's constitutional obligation to provide
a safe and nutritionally adequate diet to inmates. See
Rodriguez v. Plymouth, 577 F.3d 816, 827 (7th Cir. 2009)
(“When a party enters into a contractual relationship
with the state penal institution to provide specific medical
services to inmates, it is undertaking freely, and for
consideration, responsibility for a specific portion of the
state's overall obligation to provide medical care for
incarcerated persons. In such a circumstance, the provider
has assumed freely the same liability as the state.”);
see also Horton v. Sheriff of Cook Cty., No.
11-C-6064, 2012 WL 5838183, at *3 (N.D. Ill. Nov. 12, 2012)
(holding that Aramark can be held a state actor under §
1983 and collecting cases). Thus, to the extent Aramack
contractually assumed the County's obligation to provide
inmates safe and nutritious food, both it and its employees
may be considered state actors subject to liability under
state a claim for relief against a private corporation such
as Aramark, a plaintiff must, under Monell v. Department
of Social Services of the City of New York, 436 U.S. 658
(1978), allege “that the entity's official policy,
widespread custom, or action by an official with
policy-making authority was the ‘moving force'
behind his constitutional injury.” Dixon v. Cty. of
Cook, 819 F.3d 343, 348 (7th Cir. 2016) (quoting
City of Canton v. Harris, 489 U.S. 378, 379 (1989));
see also Shields v. Ill. Dep't of Corr., 746
F.3d 782, 796 (7th Cir. 2014). By alleging that Aramark
maintains a cart cleaning policy that fails to prevent the