Wilmoth v. Lockhart et al
ORDER adopting 164 Report and Recommendations and denying 96 Motion for Summary Judgment of Aramark Correctional Services, LLC, and Barbara Hardwick. Signed by Honorable Jimm Larry Hendren on September 27, 2012. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MICHAEL SHANE WILMOTH
Civil No. 10-5048
ARAMARK CORRECTIONAL SERVICES, LLC;
and BARBARA HARDWICK
O R D E R
Now on this 27th day of September, 2012, comes on for
consideration the Report and Recommendation of the Magistrate
Judge (document #164) and defendants' objections thereto. The
Court, being well and sufficiently advised, finds and orders as
This is a civil rights action pursuant to 42 U.S.C.
§ 1983 in which pro se plaintiff Michael Wilmoth asserts that
ARAMARK Correctional Services, LLC, and Barbara Hardwick failed to
provide him with an adequate diet while he was incarcerated in the
Benton County Detention Center (BCDC) in Bentonville, Arkansas.1
The pertinent facts have been set out in detail in the
Report and Recommendation. In short, Mr. Wilmoth alleges that
defendants, who were under contract with BCDC to provide for the
inmates' dietary needs, served spoiled beans and undercooked eggs
on several occasions, resulting in food poisoning, and that the
bad food was not replaced. He also alleges that the portion sizes
Mr. Wilmoth's claims against several other defendants have previously been settled
on the inmates' trays frequently were too small, amounting to less
than 2300 calories per day, and that this caused him to rapidly
lose 20 pounds.
ARAMARK and Hardwick filed a motion for summary judgment
(document #96) on October 24, 2011, in which they argued the
that ARAMARK or Hardwick cannot be liable under section
1983 because they are not prison officials nor have they been
delegated penal responsibilities;
that they are not liable under the theory of respondeat
superior because that doctrine does not apply to section 1983
that the isolated incidents described in Mr. Wilmoth's
Complaint do not amount to "custom" or "usage" as contemplated by
that Mr. Wilmoth's complaints are too inconsequential to
that Mr. Wilmoth did not suffer an injury sufficient to
support his claim;
that Mr. Wilmoth failed to establish he was served an
that negligent or even grossly negligent conduct does
not state a claim under section 1983; and
that the claims do not warrant punitive damages.
In her Report and Recommendation filed on August 16,
2012, Magistrate Judge Erin L. Setser recommended that the motion
for summary judgment be denied.
Defendants filed their objections on September 21, 2012.
Although they did not raise the issue in their motion for summary
judgment, defendants now argue that there is no evidence of
deliberate indifference nor any medical evidence to support Mr.
To prevail on his claims, Mr. Wilmoth must show that
defendants were deliberately indifferent to his dietary needs. See
Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992). A defendant
is "deliberately indifferent" if he is aware of an inmate's needs
yet deliberately disregards them. Hartsfield v. Colburn, 491 F.3d
394, 397 (8th Cir. 2007).
Mr. Wilmoth alleges that defendants were informed of the
spoiled beans and undercooked eggs but failed to correct the
problem, despite having knowledge that spoiled or undercooked
foods could cause food poisoning. He claims the bad foods were not
replaced with any substitute foods.
Mr. Wilmoth further alleges that he filed several grievances
regarding food portions that were too small but that he continued
to receive trays that were incomplete.
Viewing these facts in the light most favorable to Mr.
Wilmoth, as the Court is required to do, the Court finds that a
genuine issue of material fact exists as to whether defendants
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). Therefore, defendants' objection on this point
will be overruled.
Defendants also argue that there is no medical evidence
to show Mr. Wilmoth suffered any actual injury. To prevail, Mr.
Wilmoth must present some evidence that the food he was served was
nutritionally inadequate or prepared in a manner presenting an
immediate danger to his health, or that his health suffered as a
result of the food. Wishon, 978 F.2d at 449.
Defendants contend that more is required and cite an
unreported U.S. District Court opinion out of Illinois. That case
In the absence of any detriment to the plaintiff's
health or well-being, any drastic weight loss, or some
other indicator that the food did not meet his basic
needs, no reasonable trier of fact could conclude that
the plaintiff did not receive a balanced diet, or that
dietary deficiencies posed a serious risk to him.
McGee v. Monahan, , No. 06 C 3538, 2008 WL 3849917, at *8 (N.D.
Ill. Aug. 14, 2008). Defendants then cite another unpublished
plaintiff's claims of nutritional inadequacy and medical causation
require the testimony of a qualified medical expert." Peterson v.
Neubauer, No. CV 08-3133 (Dona Ana Co. Dist. Ct. N.M. Dec. 28,
Mr. Wilmoth alleges that he rapidly lost twenty pounds
as a result of the inadequate food portions served by defendants.
Defendants have cited no binding authority that states he is
required to offer expert medical evidence to further support his
claims. The Court finds that Mr. Wilmoth's sworn statement that he
suffered drastic weight loss as a result of an inadequate diet is
sufficient to survive the summary judgment motion.
IT IS THEREFORE ORDERED that defendants' objections to the
Report and Recommendation of the Magistrate Judge (document #164)
are overruled, and the Report and Recommendation is hereby adopted
IT IS FURTHER ORDERED that the Motion for Summary Judgment of
ARAMARK Correctional Services, LLC, and Barbara Hardwick (document
#96) is hereby denied.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE
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