Hill v. Aramark, LLC et al
Filing
74
ORDER denying 69 Motion to Dismiss. Signed by Judge William F. Jung on 3/26/2024. (NME)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TONY L. HILL,
Plaintiff,
v.
CASE NO. 8:23-cv-26-WFJ-NHA
ARAMARK, LLC, et al.,
Defendant.
_________________________________/
ORDER
Before the Court is Plaintiff Tony L. Hill’s (“Plaintiff”) pro se Second
Amended Complaint for Violation of Civil Rights (Dkt. 65), Defendants Aramark
Correctional Services, LLC’s and H. Pierre’s (collectively, “Defendants”) Motion
to Dismiss (Dkt. 69), and Plaintiff’s Response (Dkt. 72). Upon careful
consideration, the Court denies Defendants’ Motion.
BACKGROUND
Plaintiff,
a
diabetic
inmate
at
Zephyrhills
Correctional
Institute
(“Zephyrhills”), brings this § 1983 claim against Defendants. Aramark is a food
service provider contracted with the Florida Department of Corrections (“FDOC”)
to provide inmate meals at Zephyrhills. Ms. Pierre is an Aramark supervisor. The
Second Amended Complaint alleges that Aramark consistently fails to provide
diabetic inmates with timely meals that are calorically and nutritionally adequate.
Plaintiff’s Eighth Amendment claim is based on three broad assertions: (1) diabetic
inmates are to receive 2,600 calories per day, but the meals provided by Aramark
consistently fall short of this requirement; (2) diabetic inmates are to eat no later
than thirty minutes after receiving insulin treatment, but Aramark is regularly late
with diabetic meal service; and (3) Aramark purchases and prepares meals that are
nutritionally inadequate and practically indigestible. The Complaint and its
attachments provide factual support for all three claims.
First, Plaintiff attached notes, signed by Zephyrhills medical providers, to
the Complaint. The notes record Plaintiff’s diabetes diagnosis and prescribe him a
2,600-calorie diet. Dkt. 65-1 at 19–21. But Plaintiff contends that Aramark is not
providing him 2,600 calories a day. Dkt. 65 at 3. He states that when Aramark runs
out of an item that is on the daily menu, the supervisor instructs staff to simply
leave that slot on the tray empty instead of providing a substitute. Id. Attachments
to the Complaint allege that Aramark staff withhold butter and vegetable spread,
further reducing the caloric content of each meal. Dkt. 65-1 at 22. An affidavit of
an inmate kitchen worker accuses Aramark of adding water to leftovers, which
increases the volume of each menu item without replacing calories. Id. at 6.2
Finally, attachments describe a specific instance when the water at Zephyrhills was
apparently turned off, and Aramark provided multiple contingency meals with
inadequate calories. Id. at 24.
2
Next, attachments to the Complaint assert that “every time” the diabetic
inmates are given insulin, they have to wait forty-five minutes to eat because
Aramark staff is preparing other meal trays instead of serving the medical diets.
Dkt. 65-1 at 16. Attached grievances state that inmates told Ms. Pierre of this
problem, but she did nothing. Dkt. 65-1 at 15. Plaintiff contends that waiting
longer than thirty minutes to eat after receiving insulin treatment lowers his blood
sugar, putting him at risk of collapse and diabetic coma. Id. at 18.
Finally, the Complaint and its attachments describe the nutritional
inadequacy of the food served by Aramark and its effects on their health. It seems
there are two major issues with Aramark’s meals: indigestible meat and excessive
starch.
Plaintiff states that Aramark serves inedible soybean meat and “vegetable
texture” meat byproducts. Dkt. 65 at 5. In affidavits, other diabetic inmates attest to
the meat’s poor quality, describing a “loaf” mixed from scraps of animal intestine
and other undesirable cuts. Dkt. 65-1 at 51, 54, 56, 59, 61–63. The affiants state
that, while the menu appears varied, in actuality each meal contains the same
animal byproduct loaf under different labels (i.e., “Southern BBQ,” “Chili Mac,”
“Taco Meat”). Id. They claim that Ms. Pierre orders this low-quality meat to save
Aramark money, thereby earning bonuses for herself. Id.
3
Plaintiff alleges that the animal byproduct loaf served by Aramark injures
his stomach lining and intestines, causing internal bleeding, blood in his stool, and
ulcers. Dkt. 65 at 5. Because of these injuries, medical providers have ordered him
to undergo testing and x-rays. Id. He attaches several prescriptions, which he says
are to treat the damage to his stomach. Dkt. 65-1 at 96–101. Other inmates also
claim the loaf makes them sick, with multiple affiants asserting that they have
stomach pain and diarrhea “immediately” after eating it. Dkt. 65-1 at 50–51, 56,
59.
As for the claims of excessive starch, Plaintiff states he does not receive
fresh fruit and vegetables, dairy, or wheat products. Dkt. 65 at 3–4. Affidavits
describe a diet comprised mostly of potatoes, grits, rice, and noodles. Dkt. 65-1 at
50, 52, 54, 56–60, 62. Often these starches come in the form of “double portions,”
presumably in place of a more varied diet. Id. at 52, 57, 59–60, 62. Some affiants
further assert that the food is frequently spoiled. Id. at 54, 57, 59–60. The excessive
starch allegedly harms diabetics in two ways: (1) requiring higher doses of insulin;
and (2) increasing and/or deregulating their blood sugar. Dkt. 65-1 at 53, 54, 57,
60, 62.
Multiple affidavits distinguish the poor quality of Aramark’s food from that
of former FDOC-contracted meal providers. One affiant did not require insulin
under the previous food service provider but does under Aramark. Id. at 52.
4
Another complains of the poor nutrition “since Aramark took over food service.”
Id. at 54. One inmate states that the previous food service contractor provided
nutritious meals of decent quality while relying on the same FDOC menus as
Aramark. Id. at 61. Another wrote, “In twenty years of incarceration I have seen
Food Service Provider Companies come and go, and I have never seen or
experienced such a horrible and disgusting variety of meats.” Id. at 56.
Plaintiff filed his initial Complaint in January 2023, and it was dismissed for
failure to exhaust administrative remedies. Dkt. 58. After achieving administrative
exhaustion, Plaintiff filed an Amended Complaint and, by leave of the Court, the
instant Second Amended Complaint. He seeks monetary and injunctive relief,
asking the Court to order Aramark to serve fresh fruits, real dairy products, and
real meat. Dkt. 65 at 5. Defendants move to dismiss, arguing that Plaintiff failed to:
(1) state an objectively serious harm; (2) show Aramark acted with deliberate
indifference; (3) demonstrate a custom or policy of Aramark’s that caused the
alleged constitutional violation; and (4) show that Ms. Pierre was personally
engaged in the allegedly violative conduct. Dkt. 18. The Court will address these
arguments.
LEGAL STANDARD
To survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the plaintiff must
plead sufficient facts to state a claim that is “plausible on its face.” Ashcroft v.
5
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. In
considering the motion, the Court must accept all factual allegations of the
complaint as true and construe them in the light most favorable to the plaintiff.
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008) (citation omitted).
The Court should limit its “consideration to the well-pleaded factual allegations,
documents central to or referenced in the complaint, and matters judicially
noticed.” La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004)
(citations omitted). “Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally construed.” Boxer X
v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) abrogated on other grounds by
Wilkins v. Gaddy, 559 U.S. 34 (2010).
ANALYSIS
The Eighth Amendment prohibits cruel and unusual punishment, i.e. “the
unnecessary and wanton infliction of pain.” Thomas v. Bryant, 614 F.3d 1288,
1303 (11th Cir. 2010). “In the prison context, three distinct Eighth Amendment
claims are available to plaintiff inmates alleging cruel and unusual punishment.”
Id. These are: (1) specific conditions of confinement; (2) excessive force; and (3)
deliberate indifference to serious medical need. Id. Each type of claim must satisfy
6
an objective and a subjective prong. Id. (citing Farmer v. Brennan, 511 U.S. 825,
834 (1994)). Under the objective prong, a plaintiff must show a deprivation that is
“sufficiently serious to constitute a denial of the minimal civilized measure of
life’s necessities.” Id. at 1304 (quoting Farmer, 511 U.S. at 834). Under the
subjective prong, the plaintiff must demonstrate that the responsible state actor
possessed a “sufficiently culpable state of mind.” Id. (quoting Farmer, 511 U.S. at
834). While these prongs are the same for every cause of action brought under the
Eighth Amendment, “what is necessary to show sufficient harm and what is
necessary to show a sufficiently culpable state of mind varies with the type of
Eighth Amendment claim at issue.” Id.
As stated above, Plaintiff’s Eighth Amendment claim can be subdivided into
three basic assertions: (1) Aramark does not serve diabetic inmates the medicallyrequired 2,600 calories per day; (2) Aramark does not provide diabetic inmates
with timely meals after insulin treatment; and (3) the food Aramark selects and
prepares is nutritionally deficient. The first two assertions allege deliberate
indifference to serious medical need, while the third is a specific conditions of
confinement charge. This Order will address the claims in relation to Defendant
Aramark, followed by Defendant Pierre.
7
I.
Deliberate Indifference to Serious Medical Need (Against Aramark)
To state an Eighth Amendment claim based on deliberate indifference to a
serious medical need, an inmate must show: (1) an objectively serious medical
need; and (2) “deliberate indifference,” subjectively, on the part of the responsible
prison official. Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003). A medical
need is objectively serious if it “has been diagnosed by a physician as mandating
treatment” or “is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention.” Id. A prison official acts with “deliberate
indifference” when she “knows of and disregards an excessive risk to inmate
health or safety.” Id. “[D]eliberate indifference has three components: (1)
subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by
conduct that is more than mere negligence.” Id. (quoting McElligot v. Foley, 182
F.3d 1248, 1255 (11th Cir. 1999)). If an official knows that an inmate needs
serious medical care, a failure or even—in some cases—a delay to provide that
care goes beyond negligence and may constitute deliberate indifference. Id. at
1246.
Specifically addressing meals for diabetic inmates, other circuits have held
that, while prisons need not accommodate inmates’ dietary preferences, the Eighth
Amendment imposes a duty to “provide a medically appropriate diet when
necessary.” Scintio v. Stansberry, 841 F.3d 219, 233 (4th Cir. 2016) (first citing
8
Frazier v. Dep’t of Corr., 125 F.3d 861, at *1 (10th Cir. 1997) (unpublished table
opinion); then Byrd v. Wilson, 701 F.2d 592, 595 (6th Cir. 1983); and then Jackson
v. Hanlon, 923 F.2d 856, at *1 (7th Cir. 1991) (unpublished table opinion)).
Correctional institutions must provide diabetic prisoners with a “combination of
foods in each meal that [provide] adequate sustenance without causing adverse
medical consequences.” Scintio, 841 F.3d at 234. Within the Eleventh Circuit,
district courts have permitted Eighth Amendment claims to proceed when plaintiff
inmates claimed that meals served by defendant food service companies did not
comport with a prescribed medical diet, did not contain sufficient calories, or were
not served promptly after insulin treatment. Cormier v. Ga., 5:21-cv-00218-MTTMSH, 2022 WL 20717348, at *3 (M.D. Ga. Jan. 19, 2022); Wilder v. Aramark
Servs., Inc., No.: 3:17-cv-239-RV-EMT, 2018 WL 5274257, at *6 (N.D. Fla. Sept.
24, 2018).
The specific factual scenario before the Court is not unique; district courts
around the country have allowed claims to survive when diabetic inmates alleged
that Aramark failed to serve them a prescribed medical diet or failed to serve meals
within a timely manner after insulin treatment. See Wilder, 2018 WL 5274257, at
*7; Scruggs v. Moody, NO. 3:22-CV-834-JD-MGG, 2023 WL 5217153, *2 (N.D.
Ind. Aug. 11, 2023); Simmons v. Aramark, NO. 3:16-CV-P120-JHM, 2016 WL
3748548, *3 (W.D. Ky. July 11, 2016); McCabe v. Aramark Food Servs., No. 01 C
9
5429, 2002 WL 27661, *2 (N.D. Ill. Jan. 10, 2002); see also Hardin v. Aramark
Food Serv. Corp., 11-cv-3238, 2017 WL 1658812, *5 (C.D. Ill. May 1, 2017)
(denying Aramark’s motion for summary judgment); Berry v. Aramark Corr.
Servs., LLC, No. 1:18-cv-03651-JRS-MPB, 2020 WL 374436, at *2 (S.D. Ind. Jan.
23, 2020) (finding inmate had a significant likelihood of success on his claim that
Aramark violated the Eighth Amendment by failing to provide him with a
medically prescribed diet); but see Persinger v. Roberts, No. 2:09–cv–00825, 2010
WL 3418379, *13 (S.D. W. Va. Aug. 6, 2010) (inmate failed to state Eighth
Amendment claim based on denial of medical diet when he did not allege “specific
intent to cause harm” or “presence of severe injuries”). Moreover, Aramark does
not contest that diabetes is an objectively serious medical need. See, e.g.,
Hammonds v. Theakston, 833 F. App’x 295, 300 (11th Cir. 2020) (unreported).
Plaintiff has therefore satisfied the objective prong.1
Aramark argues that the Complaint fails to establish the subjective deliberate
indifference prong. It states that “Plaintiff does not and cannot allege that Aramark
acted with deliberate indifference because Aramark simply provided the diet to
Plaintiff as specified in its contract with the Florida Department of Corrections.”
“[M]any—although not all—courts to have considered the question have concluded that
Aramark, when it feeds prisoners, is a state actor under the public function test.” Ackridge v.
Aramark Corr. Food Servs., No. 16-cv-6301 (KMK), 2018 WL 1626175, at *8 (S.D.N.Y. Mar.
30, 2018) (collecting cases). Aramark does not contest that it acts under color of law when
providing food service for the FDOC. The Court will therefore assume it is a proper defendant
for a § 1983 action.
1
10
Dkt. 69 at 14. Aramark further reasons that “whether Plaintiff receives a diabetic
meal and what the menu is for diabetic meals are not Aramark’s to make.” Id. This
argument misses the mark. Plaintiff is not complaining that he should be prescribed
a diabetic meal or that the menu for diabetics is inadequate. Instead, he is alleging
that he has been prescribed a specific diet by FDOC medical staff, and that
Aramark is not providing him meals that satisfy that diet, i.e. Aramark is not
offering him 2,600 calories worth of food a day or serving the meals in a timely
manner. Dkt. 65 at 3; Dkt. 65-1 at 58–59. Plaintiff’s allegation that Aramark failed
to provide him with a prescribed medical diet is exactly the type of claim that
multiple district courts around the country, including within the Eleventh Circuit,
have allowed to survive motions to dismiss. See, e.g., Wilder, 2018 WL 5274257,
at *7.
In contrast, none of the cases Aramark cites in support of its argument are on
point. In DeJesus v. Aramark and Harrison v. Moteka, both cited by Aramark,
neither plaintiff had a medical diagnosis or prescription for a special diet. DeJesus
v. Aramark Food Serv., Inc., No. 13–5734, 2014 WL 144732, *3 (E.D. Penn. Jan.
14, 2014); Harrison v. Moteka, No. 9:06–1203–PMD–GCK, 2006 WL 4071598,
*5 (S.C. Dec. 1, 2006). And in Jones v. Western Tidewater Reg’l Jail, the
plaintiff’s grievance was with the medical diet itself, not Aramark’s compliance
with it. 187 F. Supp. 3d 648, 657 (E.D. Va. May 6, 2016).
11
Similarly, in Escalante v. Huffman the plaintiff stated an Eighth Amendment
claim for inadequate nutrition, but the food service defendant was not held liable
because she was not responsible for prescribing the medical diets. Instead, she was
merely “responsible for ensuring that offenders who receive a medically prescribed
diet receive meals consistent with the ordered diet.” No. 7:10cv00211, 2011 WL
3107751, *9, 12 (W.D. Va. July 26, 2011). In the instant case, Plaintiff is not
asking Aramark to prescribe a medical diet; he is alleging that Aramark does not
ensure he receives meals consistent with the diet FDOC medical staff have
ordered.
Finally, the court in Nesbit v. Cribb ruled against the plaintiff on summary
judgment because he failed to produce evidence that Aramark was serving him
fewer than 2,800 calories. No. 6:09–2350–RBH–WMC, 2010 WL 1838725, *9
(S.C. Apr. 13, 2010). But at this stage in the instant case, the Court accepts as true
Plaintiff’s contention that Aramark is not serving him the required 2,600 calories
per day.
Plaintiff filed multiple grievances making Aramark aware of his specialized
diet, the fact that he was not receiving meals consistent with that diet, and the
resultant risk of increased blood sugar from inadequate calories and untimely meal
srevice. Dkt. 65-1 at 8–13, 16–17, 22, 24–26, 28–29. Plaintiff has pled a facially
plausible claim against Aramark for an Eighth Amendment violation based on
12
deliberate indifference to a serious medical need, sufficient to survive the instant
Motion to Dismiss.
II.
Specific Condition of Confinement (Against Aramark)
Under the Eighth Amendment, prisoners are entitled to “a well-balanced
meal with sufficient nutritional value to preserve health.” Oliver v. Fuhrman, 739
F. App’x 968, 970 (11th Cir. 2018) (per curiam) (citing Hamm v. DeKalb Cnty.,
774 F.2d 1567, 1575 (11th Cir. 1985) (noting that prisoners received a total of
2,600 calories per day)). This requirement to provide meals that are “reasonably
adequate,” id., is a low bar. For example, the Eleventh Circuit has dismissed
conditions of confinement claims that were based on occasional foreign objects in
food, Oliver, 739 F. App’x at 970, food served cold, id., and five meals missed
each week of a fifteen-month period, Hernandez v. Fla. Dept. of Corrs., 281 F.
App’x 862, 866 (11th Cir. 2008) (per curiam). Typically, to state an Eighth
Amendment claim based on inadequate nutrition, a plaintiff must allege significant
consequent physical harm. Id.; Coleman v. McGhee, No. 21-12557, 2022 WL
217578, at *2 (11th Cir. Jan. 25, 2022) (per curiam). Plaintiffs complaining of
inadequate diet must plead “a serious medical need,” Oliver, 739 F. App’x at 970,
which is defined as “one that has been diagnosed by a physician as mandating
treatment,” Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003), and which “if
left unattended, poses a substantial risk of serious harm,” id.
13
To support his specific conditions of confinement claim, Plaintiff adequately
pleads a serious medical need independent of his diabetes. He states that the lowquality meat products and inadequate nutritional content of Aramark’s meals have
caused damage to his stomach lining, internal bleeding, blood in his stool, ulcers,
and swelling in his abdomen. Dkt. 65 at 5. Zephyrhills medical personnel
prescribed him tests, x-rays, and medications to address these issues. Id.; Dkt. 65-1
at 96–101. These facts, taken as true and construed in the light most favorable to
Plaintiff, establish a specific conditions of confinement claim based on low-quality
and nutritionally inadequate meals.
Defendant correctly notes that the Constitution does not guarantee “‘the
amenities, conveniences, and services of a good hotel,’” Dkt. 69 (quoting Harris v.
Fleming, 839 F.2d 1232 ,1235 (7th Cir. 1988), “‘comfortable prisons,’” id.
(quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)), or “food that is tasty or
even appetizing,” id. (citing Robbins v. Robertson, 782 F. App’x 794, 805 (11th
Cir. 2019). But the Constitution does require “the minimal civilized measure of
life’s necessities.” Id. (quoting Rhodes, 452 U.S. at 347). The deficiencies alleged
by Plaintiff sound more in minimal necessity than in comfort.
“An inmate must rely on prison authorities” to meet his most basic
necessities. Estelle v. Gamble, 429 U.S. 97, 103 (1976). “[I]f the authorities fail to
do so, those needs will not be met.” Id. Plaintiff does not allege that Aramark
14
failed to provide him with appetizing meals—he asserts that Aramark served him
inedible food, and not enough of even that. Aramark misses the mark by
suggesting that Plaintiff’s plea for edible food in sufficient quantities is akin to
demanding hotel-like service. To the contrary, it is plain that Plaintiff understands
the limitations of prison food. Multiple affidavits negatively compare Aramark’s
meals to those of prior food service providers. The benchmark Plaintiff is aiming
for here isn’t a good hotel; it is constitutionally adequate nutrition.
The instant Second Amended Complaint adequately states deliberate
indifference to a serious medical need and a specific conditions of confinement
claim against Aramark.
III.
Aramark’s Liability Under Monell
Defendant Aramark further argues that, as a private entity under contract to
provide state services, it cannot be sued under § 1983 unless its policy or custom
caused the alleged constitutional violation. Dkt. 69 at 5–6.
As with municipalities, private entities providing state services cannot be
held vicariously liable for the actions of their individual employees. Harvey v.
Harvey, 949 F.2d 1127, 1129–30 (11th Cir. 1992) (citing Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978)) (explaining that Monell applies to private
corporations). Instead, a private company is liable only if it has an official policy
or unofficial custom of deliberate indifference to inmate health and safety. Craig v.
15
Floyd Cnty., 643 F.3d 1306, 1310 (11th Cir. 2011). Because it is unlikely that a
company such as Aramark will have an official policy of deliberate indifference,
an inmate typically must rely on unofficial custom. Id. The inmate must show that
the company has a custom of permitting a constitutional violation, and that the
custom is the “moving force” behind that violation. Id. (citing Grech v. Clayton
Cnty., 335 F.3d 1326, 1330 (11th Cir. 2003)).
A custom is “a practice that is so settled and permanent that it takes on the
force of the law.” McDowell v. Brown, 392 F.3d 1283, 1290 (11th Cir. 2004)
(quotation omitted). A single incident cannot establish custom; instead, courts look
to a practice that is “longstanding and widespread.” Id. (citing Brown v. City of
Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991)). “Merely citing one’s own
personal experience, without more, is insufficient to show a longstanding and
widespread practice.” Derks v. Bassa, No. 22-13202, 2023 WL 5664197, at *2
(11th Cir. Sept. 1, 2023) (citing Brown, 923 F.2d at 1481; Myrick v. Fulton County,
69 F.4th 1277, 1299 (11th Cir. 2023)).
Here, Plaintiff alleges that Aramark consistently failed to provide him and
fourteen other diabetic inmates with constitutionally adequate nutrition from
March 15, 2022 to November 18, 2023. Dkt. 65 at 5. As the Second Amended
Complaint was filed November 20, 2023, the Court can reasonably infer that the
complained-of behavior continues to the present. Dkt. 65 at 1. Indeed, the
16
Complaint’s attachments aver that the alleged practices have gone on for the
duration of Aramark’s contract with the FDOC. Dkt. 65-1 at 54, 56, 61. Further,
Plaintiff does not rely solely on his own personal experience. He attached multiple
witness statements from other diabetic inmates to his Second Amended Complaint.
Dkt. 65-1 at 61–68, 71–74. As a result, the Complaint adequately pleads that
Aramark has a longstanding and widespread practice of providing calorically and
nutritionally deficient meals to diabetic inmates.
However, Plaintiff does not state sufficient facts to show that Aramark has a
policy or custom of serving meals late to diabetics on insulin, or of deliberate
indifference to employees doing the same. The record shows that Aramark
instructed supervisors to serve diabetic meals promptly. Dkt. 65-1 at 29. As a
result, Plaintiff’s claim against Aramark may proceed as to calorically and
nutritionally deficient meals, but not based on timely service.
IV.
Individual Capacity Claims Against Ms. Pierre
Ms. Pierre is the official who answered Plaintiff’s DOC grievances on behalf
of Aramark. See Dkt. 1-1 at 2–4. As with Aramark, Ms. Pierre cannot be held
vicariously liable for the actions of subordinate Aramark employees. West v.
Tillman, 496 F.3d 1321, 1328–29 (11th Cir. 2007). If a supervisor does not
personally participate in allegedly unconstitutional conduct, she can only be held
liable for that conduct under a theory of deliberate indifference. Id. If the
17
supervisor “responded reasonably to the risk,” she cannot be held liable. Swan, 958
F.3d at 1089.
Ms. Pierre responded reasonably to Plaintiff’s grievance as to late meals,
instructing that meals should be served on time. Dkt. 45-1 at 3. She cannot be held
liable for the late meals. But as to the allegations of calorically and nutritionally
inadequate food, the Second Amended Complaint stated facts showing Ms.
Pierre’s personal involvement. Plaintiff alleges that Ms. Pierre personally “leaves
food off trays, with no substitution.” Dkt. 65 at 3. It also asserts that she personally
orders nutritionally inadequate food to save Aramark money and receive a bonus
for herself. Dkt. 65-1 at 56, 60. These are changes from the original Complaint,
based upon which the Court entered its Order dismissing claims against Ms. Pierre
in her individual capacity. Dkt. 58 at 5–6. Thus, the claims against Ms. Pierre for
serving fewer calories than required and for serving nutritionally deficient meals
may proceed, but Plaintiff is cautioned that failure to prove these allegations may
result in sanctions.
DONE AND ORDERED in Tampa, Florida, on March 26, 2023.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
18
Petitioner, pro se
Counsel of Record
19
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