Smego et al v. Illinois Department of Human Services et al

Filing 486

OPINION (See Written Opinion): IT IS ORDERED: 1) Aramark Food Services Corporation's second motion for summary judgment is granted in part and denied in part (d/es 471 ). The motion is granted as to the dispute over 9 C.F.R. 319.6. Sectio n 319.6 is irrelevant. This regulation does not prohibit the serving of mechanically separated chicken as the sole protein source in meals. The motion is otherwise denied. 2)The rest of the pending summary judgment motions are denied (d/e's 470 , 475 , 476 ). 3) A status conference is set by telephone conference on January 27, 2014 at 1:30 p.m. in order to set dates for the final pretrial conference and jury trial. Entered by Judge Sue E. Myerscough on 1/10/2014. (VM, ilcd)

E-FILED

Friday, 10 January, 2014 09:41:35 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
RICHARD SMEGO, et al.
Plaintiffs,
v.
ARAMARK FOOD SERVICES
CORP., et al.,
Defendants.

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No. 10-CV-3334

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
On May 13, 2013, the Court denied the parties’ respective
summary judgment motions. The Court concluded that, regardless
whether the “mechanically separated chicken” served at the
Rushville Treatment and Detention Center violates federal
regulations, jury questions remain regarding whether the food
served at the Center meets constitutional standards. The parties
have filed renewed motions for summary judgment, asking in part
for a decision on the regulatory disputes.
The Court is still of the opinion that the regulatory disputes do
not resolve this case. Contrary to Plaintiffs' assertion, a violation of
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federal regulations does not automatically violate constitutional
standards. See Scherer v. Davis, 468 U.S. 183 n. 12
(1984)(“Neither federal nor state officials lose their [qualified]
immunity by violating the clear command of a statute or
regulation—of federal or of state law—unless that statute or
regulation provides the basis for the cause of action sued upon.”).1
Likewise, the absence of a federal regulatory violation would not
necessarily negate a constitutional claim.
However, the Court agrees that ruling on the regulatory
disputes now will help streamline the trial and avoid confusing the
jury. For the reasons set forth below, the Court concludes that 9
C.F.R. § 319.6 does not prohibit the serving of meals containing
mechanically separated chicken as the sole protein source. Section
319.6 is irrelevant to this case.
Section 381.173, on the other hand, is relevant. A reasonable
inference arises from § 381.173 that the chicken labeled for further
processing only should have been used only for soup stocks and
such, which supports (but does not compel) Plaintiffs' conclusion
Plaintiffs do not maintain that they have a private right of action under the regulations, nor
do they cite any support for the argument that the regulations create a right enforceable under
42 U.S.C. Section 1983. Clifton v. Schafer, 969 F.2d 278, 283 (7th Cir. 1992)("[V]iolation of a
federal statute is not by itself sufficient to support a § 1983 action.")
1

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that the mechanically separated chicken labeled for further
processing was not fit for consumption. In any event, regardless of
the label on the chicken, Plaintiffs maintain that the mechanically
separated chicken meals make them ill, a claim which belongs with
the jury.
I.

The “20%” rule cited by Plaintiffs does not prohibit
Aramark from serving a meal made completely with
mechanically separated chicken. But that conclusion
does not resolve Plaintiff's claim that the meals make
them sick.

Chapter III of Title 9 of the Code of Federal Regulations addresses
the Food and Safety Inspection Service, an agency of the U.S.
Department of Agriculture. 9 C.F.R. § 300.1. Part 381 of this
chapter addresses poultry products; subpart P therein addresses
“definitions and standards of identity or composition” for poultry
products and contains two sections addressing mechanically
separated chicken. 9 C.F.R. § 381.173-74. The latter section
provides that mechanically processed chicken “may be used in the
formulation of any poultry or meat food product, provided such use
conforms with any applicable requirements of . . . this subchapter
or part 319 of this chapter.” 9 C.F.R. 381.174(b). Part 319

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addresses "definition and standards of identity or composition" of
meat products.
Aramark's menu lists entrees which many people might expect
to be made with ground beef, such as spaghetti, meat loaf, and
biscuits with gravy. Instead of using ground beef or sausage, these
entrees are made with mechanically separated chicken. Plaintiffs
argue that this practice violates 9 C.F.R. 319.6(b), which provides:
Mechanically Separated (Species) described in § 319.5
that has a protein content of not less than 14 percent
and a fat content of not more than 30 percent may
constitute up to 20 percent of the livestock and poultry
product portion of any meat food product except those
listed in paragraph (d) of this section.
A “meat food product” is defined as food made from
cattle, swine, sheep or goats. 9 C.F.R. Section 301.2. Section
319.5 describes "mechanically separated species" as "finely
comminuted product" of livestock carcasses, examples of
which are mechanically separated beef, veal, pork, and lamb.
9 C.F.R. § 319.5.
Plaintiffs contend that the mechanically separated
chicken in menu items like spaghetti sauce with meat, meat
loaf, and biscuits with sausage gravy can comprise only 20%
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of the “meat” under this regulation. See, e.g., 9 C.F.R. §
319.261 (meatloaf is a meat food product which may contain
up to 20% mechanically separated poultry or mechanically
separated livestock). They also argue that mechanically
separated chicken cannot be the only "meat" or protein source
in any meal.
Section 319.6 does not prohibit the use of mechanically
separated chicken as the sole protein source in a meal. This
section does not even apply to a meal made solely with
mechanically separated chicken. Section 319.6(b) applies to
the composition of "meat food products" which are products
made from cattle, swine, sheep, or goats. 9 C.F.R. Section
301.2.
While a more accurate description for Aramark's "meat
loaf" might be "mechanically separated chicken loaf," a
misleading menu does not violate the Constitution. Thus,
even if § 319.6(b) prohibits Aramark from calling the entrée
"meatloaf" or "spaghetti" because the entree contains only
mechanically separated chicken, that would not offend the
Constitution. The printed menu might be relevant to show
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state of mind—that Aramark tried to conceal the real
ingredients in the meal by calling the meal a misleading
name—but the misleading menu would not be independently
actionable under the Constitution.
Though § 319.6 is not relevant to Plaintiff's claims,
Plaintiff's constitutional claims that the mechanically
separated chicken entrees make them sick still remain.
Plaintiffs contend that these meals, served six times per week,
taste awful and make them physically ill. Given the indefinite
and prolonged length of Plaintiffs' detention, that is enough for
a juror to infer an objectively serious deprivation. Plaintiffs
have personal knowledge of whether they can stomach the
meals, and deliberate indifference might reasonably be
inferred from Defendants' refusal to make any changes.2
Plaintiffs also have personal knowledge of the alleged
unsanitary conditions in which the meals are prepared and
served, a claim which they still pursue. (Pls.' Second Motion
for Summary Judgment, p. 5, n. 1.)

Defendants contend that the employees eat the meals without complaint, but Plaintiffs
counter that most employees, except for security staff, bring their own food to work.
2

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II.

Whether the mechanically separated chicken marked
“for further processing” was improperly served to
Plaintiffs is a jury question.
The parties agree that the mechanically separated chicken

used in food products cannot exceed certain bone particle size and
calcium content limits. 29 C.F.R. § 381.173(b)-(c). Mechanically
separated chicken that exceeds those limits must be labeled as
"mechanically separated chicken for further processing" and "used
only in producing poultry extractives, including fats, stocks, and
broths." 29 C.F.R. § 381.173(e).
The parties also agree that, for a period of time before and
after Plaintiffs filed this case, Aramark served meals prepared from
mechanically separated chicken labeled "for further processing
only." Plaintiffs argue that, as a matter of law, the serving of this
chicken violated Plaintiff's constitutional rights because Section
381.173(e) prohibits that practice. However, § 381.173(e) does not
prohibit a "for further processing" label on mechanically separate
chicken which does meet bone and calcium limits.
The Court does conclude that the label "for further processing
only" and 29 C.F.R. §381.173(e) together create an inference in
Plaintiffs' favor that the chicken so marked should have been used
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only for soup stock and like products.3 However, that inference is
not compelled. Defendants' evidence counters that inference. Dr.
Scott Stillwell, the Vice President of Food Safety and Quality
Assurance at Tyson Foods, Inc., avers that the chicken labeled for
further processing only which was provided to Rushville met all
regulatory requirements, including the bone and calcium limits. He
avers that the "for further processing only" label was only to warn
the end user that raw chicken must be handled, stored, and cooked
properly, and that the USDA has never required a "for further
processing" label for any mechanically separated chicken sold by
Tyson to Aramark for use at Rushville. (Stillwell Aff. ¶¶ 7-12).
Dr. Stillwell's affidavit allows for a reasonable inference that
the mechanically separated chicken served to Plaintiffs by Aramark
has always met the bone and calcium limits, regardless of labels.
However, as Plaintiffs point out, the dates in Dr. Stillwell's affidavit
are inconsistent. Dr. Stillwell avers that the mechanically
separated chicken at issue was sold "to ARAMARK at the Rushville

3 Plaintiffs also cite Defendant Dredge's deposition testimony that Dredge originally thought it
was fine to serve the "for further processing only" chicken by itself, but then later came to
believe that said chicken must by "used in conjunction with another product." (Dredge Dep. p.
32.) This does not support Plaintiff's claim that the "for further processing only" chicken could
not be served at all. Further, Dredge's understanding of federal regulations would not change
what the federal regulations say.

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Treatment and Detention facility in Rushville, IL ('Rushville') for
approximately eight years, and at least from January 2011 to the
present." (Stillwell Aff. ¶ 6.) The Court is not sure what that
sentence means, and Plaintiffs contend that Aramark has only been
providing meals at Rushville since 2010. Dr. Stillwell later avers
that the mechanically separated chicken has been served at
Rushville "from at least January 2011 to the present" but this case
also involves the year 2010. (Stillwell Aff. ¶ 12.) Additionally,
Plaintiffs have a point that Dr. Stillwell's averment that the "for
further processing only" label was simply to alert the user of the
dangers of raw chicken may be hard to believe in light of §
381.173(e). Did Tyson label all of its raw chicken "for further
processing only"? Does Tyson sell mechanically separated chicken
which does not meet bone particle and calcium requirements? If
so, how does Tyson label that chicken? Dr. Regenstein's affidavit is
of little help because it is based on Defendants' representation that
the mechanically separated chicken at all times met the bone and
calcium requirements.
In sum, neither side has incontrovertible evidence regarding
whether the mechanically separated chicken labeled for further
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processing only met the bone particle size and calcium content
requirements in § 381.173. The Court must draw inferences in
Plaintiffs' favor at this stage and may not weigh the strength of
competing inferences. Stokes v. Board of Educ. of the City of
Chicago, 599 F.3d 617 (7th Cir. 2010)("In deciding a motion for
summary judgment, neither the district court nor this court may
assess the credibility of witnesses, choose between competing
reasonable inferences, or balance the relative weight of conflicting
evidence.") A rational juror could find that the mechanically
separated chicken labeled for further processing should have been
used only for soup stocks and the like, which supports Plaintiffs
claim that the meals made them sick. A rational juror could also
conclude that, regardless of whether the chicken met bone and
calcium limits, the meals still made Plaintiffs sick.
III.

Drawing reasonable inferences in Plaintiffs’ favor,
Defendant Ashby knew that the mechanically separated
chicken meals were sickening.

Defendant Ashby, the former Director of the Rushville
Treatment and Detention Center, moves separately for summary
judgment on grounds that no evidence exists that he was
deliberately indifferent to any problem with the food. He has
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evidence that Plaintiffs have consistently maintained normal or
above-normal weights and have no demonstrable health problems.
Plaintiffs do not dispute that Ashby referred complaints about the
food to the dietary manager and that Ashby has no special training
in dietary matters. Ashby avers that he sampled the meals twice a
week, but Plaintiffs dispute this.
The Court agrees with Defendant Ashby that he was entitled to
rely on the dietary manager's assurance that the food being served
met federal requirements and was properly prepared and served.
That is not something within a layperson's purview.
However, the real question in this case, in the Court's opinion,
is whether the mechanically separated chicken meals are as bad as
Plaintiffs say. That question is really one of credibility. As the
Court stated in its last opinion, Plaintiffs maintain that the
mechanically separated chicken meals are sickening, repeatedly
causing nausea, diarrhea, gastrointestinal distress, and, at least as
to Plaintiff Schloss, weight loss. If the mechanically separated
chicken meals are as bad as Plaintiffs say, then a rational juror
could find that Plaintiffs are regularly provided sickening food. If a
rational juror concluded that the meals were intolerable on a
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regular basis, that juror could also rationally conclude that
Defendant Ashby was subjectively aware of the problem through
Plaintiffs' many complaints and Ashby's ability to try the food for
himself. A rational juror could also conclude that Ashby had the
authority to do something about it by demanding that Aramark fix
the situation. Accordingly, the entry of summary judgment is not
appropriate for Defendant Ashby, nor is a finding of qualified
immunity.
IT IS ORDERED:
1) Aramark Food Services Corporation’s second motion for
summary judgment is granted in part and denied in part
(d/e’s 471). The motion is granted as to the dispute over 9
C.F.R. 319.6. Section 319.6 is irrelevant. This regulation
does not prohibit the serving of mechanically separated
chicken as the sole protein source in meals. The motion is
otherwise denied.
2) The rest of the pending summary judgment motions are
denied (d/e’s 470, 475, 476).

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3) A status conference is set by telephone conference on
January 27, 2014 at 1:30 p.m. in order to set dates for the
final pretrial conference and jury trial.
ENTER: January 10, 2014
FOR THE COURT:

s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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