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Nelson v. Aramark Food Service

United States District Court, E.D. Wisconsin

May 9, 2018

EARL NELSON, Plaintiff,
ARAMARK FOOD SERVICE, et al., Defendant.



         Plaintiff 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.

         Motion to Proceed without Prepayment of the Filing Fee

         Plaintiff 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.

         Screening of the Complaint

         The 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).

         To 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).

         Allegations of the Complaint

         Plaintiff 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 other inmates.

         The Court's Analysis

         “To 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)).

         The 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))).

         To 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 § 1983.

         To 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 ...

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