United States District Court, E.D. Wisconsin
DONALD A. PICKETT, Plaintiff,
ORDER SCREENING PLAINTIFF'S AMENDED COMPLAINT
(DKT. NO. 10)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
case is assigned to U.S. Magistrate Judge Nancy Joseph. On
March 5, 2019, Judge Joseph issued an order screening the
plaintiff's complaint and finding that he failed to state
a claim. Dkt. No. 9. Judge Joseph gave the plaintiff an
opportunity to file an amended complaint, id. at 5,
which he did on April 1, 2019, dkt. no. 10.
the plaintiff consented to Judge Joseph hearing and deciding
the case, the defendant has not yet had the
opportunity to decide whether to consent to magistrate judge
authority because, until now, the court has not decided
whether the complaint should be served on the defendant.
Because both parties have not yet consented to the
magistrate judge hearing the case, the clerk's office
referred the case to this district judge to screen the
amended complaint and decide whether it should be served on
the defendant. The court will explain whether the plaintiff
states a claim, then return the case to Judge Joseph for
Judge Joseph explained in her March 5 order, the law requires
the court to screen complaints brought by prisoners seeking
relief against a governmental entity or officer or employee
of a governmental entity. Dkt. No. 9 at 2 (citing 28 U.S.C.
§1915A(a)). The court must dismiss a complaint if the
plaintiff raises 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.
plaintiff alleges that he is a Protestant, which requires him
to be on a vegan diet; his religious beliefs prohibit him
from consuming meat, animal products or yeast. Dkt. No. 10 at
2. He explains that, when he arrived at the Racine County
Jail on November 21, 2018, he was placed on a vegan diet.
Id. Despite that designation, he alleges that he has
not received a vegan tray since he arrived. Id. at
2-3. The plaintiff asserts that he is expected to eat
whatever the kitchen sends him, including bread (which
contains yeast), milk and grilled cheese. Id. at 3.
The plaintiff says that when he notified CO Foreman of the
problem, Foreman “called the kitchen/Aramark once
again.” Id. He says that Delanda Jones told
him to eat what the kitchen sent or “don't eat at
all.” Id. The plaintiff recounts an occasion
on which he was given a grilled cheese sandwich, even though
his tray clearly was marked “vegan diet no meat or
dairy.” Id. He says he informed CO Eppers of
the problem; when Eppers sent for a new tray, the plaintiff
again got a grilled cheese. Id. He didn't eat
that day, “like many other days.” Id.
The plaintiff says he's written many complaints about
this and has not gotten a response. Id. at 4.
plaintiff names only Aramark as a defendant. Under
§1983, a plaintiff cannot sue a private corporate
employer for the misconduct of its employees unless the
plaintiff can show “that his injury was caused by a
[corporate] policy, custom, or practice . . . .”
Shields v. Ill. Dept. of Corrections, 746 F.3d 782,
796 (7th Cir. 2014). The plaintiff has not alleged that
Aramark had a policy, custom or practice of serving meat and
dairy to vegan inmates, nor has he alleged a pattern of bad
acts involving other vegan inmates that would raise an
inference of such a policy. It appears that the only reason
the plaintiff named Aramark as a defendant is because Aramark
is the employer of the kitchen staff who prepared his meals.
On the allegations in this amended complaint, the plaintiff
may not proceed against Aramark.
the defendant did not list Delanda Jones as a defendant, the
court will allow him to proceed against her on claims under
the First Amendment and the Religious Land Use and
Institutionalized Persons Act, based on his allegations that
after he told Jones he could not eat the food he had been
served, she told him to either eat it or not eat at all.
See, e.g., Koger v. Bryan, 523 F.3d 789 (7th Cir.
2008). Although the plaintiff did not name Jones in the
caption of his complaint, the Seventh Circuit has instructed
district courts to liberally construe pro se
complaints, which may include construing a plaintiff to have
named a defendant who is mentioned only in the body of the
complaint. Donald v. Cook Cty. Sheriff's Dept.,
95 F.3d 548, 559 (7th Cir. 1996).
court DISMISSES Aramark as a defendant based
on the plaintiff's failure to state a claim against it.
court NAMES Delanda Jones as a defendant.
The clerk's office will update the docket accordingly.
court ORDERS the U.S. Marshals Service to
serve a copy of the amended complaint and this order on
defendant Delanda Jones under Federal Rule of Civil Procedure
4. Congress requires the U.S. Marshals Service to charge for
making or attempting such service. 28 U.S.C. §1921(a).
Although Congress requires the court to order service by the
U.S. Marshals Service, it has not made any provision for
either the court or the U.S. Marshals Service to waive these
fees. The current fee for waiver-of-service packages is $8.00
per item mailed. The full fee schedule is provided at 28
C.F.R. §§0.114(a)(2), (a)(3). The U.S. Marshals
Service will give the plaintiff information on how to remit
payment. The court is not involved in collection of the fee.
court ORDERS defendant Delanda Jones to file
a responsive pleading to the amended complaint.
court ORDERS that the parties may not begin
discovery until after the court enters a scheduling order
setting deadlines for discovery and dispositive motions.
court RETURNS this case to United States
Magistrate Judge Nancy ...