Hardin v. Aramark Food Services Corp et al
Filing
89
OPINION: The motion for summary judgment by Defendants Aramark and Dredge is denied 73 . The motion for summary judgment by Defendant Scott is granted on the grounds of qualified immunity 81 . This case is referred to the Magistrate Judge for a settlement conference. The clerk is directed to terminate Defendant Scott. The clerk is directed to notify the Magistrate Judge of the referral. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 5/1/2017. (GL, ilcd)
E-FILED
Monday, 01 May, 2017 08:45:37 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
TOMMY O. HARDIN,
)
)
Plaintiff,
)
)
v.
)
)
ARAMARK FOOD SERVICES )
CORP., STEVE DREDGE, and )
GREG SCOTT,
)
)
Defendants.
)
11-cv-3238
OPINION
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE.
Plaintiff proceeds pro se from his detention in the Rushville
Treatment and Detention Center pursuant to the Illinois Sexually
Violent Persons Act. He pursues a constitutional claim that the
facility provided him inedible food by serving mechanically
separated chicken, both the kind which arrived in boxes marked
“for further processing only” and the kind which arrived in boxes
not so marked. Plaintiff also alleges that he was, in effect, denied a
diabetic diet because he could not eat the mechanically separated
chicken which was served to him twice daily at times. Lastly,
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Plaintiff alleges that the trays and utensils are dirty and the food
served cold.
Before the Court are Defendants’ motions for summary
judgment. For the reasons explained below, the motion by
Defendants Aramark Correctional Services LLC (“Aramark”) and
Dredge is denied. The motion by Defendant Scott is granted on the
grounds of qualified immunity.
Background
On December 20, 2010, four residents detained in the
Rushville Treatment and Detention Center filed a purported class
action challenging, as is relevant to this case, the serving of
mechanically separated chicken from boxes marked “for further
processing only.” Smego v. Ill. Dept. of Human Serv., 10cv3334
(C.D. Ill.). On June 2, 2011, the plaintiffs’ motion for class
certification in that case was denied because they were pro se.
(10cv3334, d/e 43, p. 2.) A flood ensued of over 60 additional cases
filed by some 80 other residents regarding the same issues.
The additional plaintiffs were joined into the original case, and
Plaintiff Richard Smego was designated as spokesperson. Id. d/e
336. The Court was eventually able to recruit pro bono counsel,
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but only for the plaintiffs in the original case. The claims of the rest
of the plaintiffs were severed and stayed, with the hopes that the
resolution of the original case might resolve the other cases or help
guide the Court in resolving the other cases.
Summary judgment was denied in the original case, and then
the original case settled in July 2014. Part of the settlement was an
agreement that the mechanically separated chicken labeled “for
further processing only” would no longer be served at the facility.
However, Plaintiff maintains that mechanically separated chicken
not so labeled continued to be served until an unidentified later
date.
After the original case settled, the plaintiff was given an
opportunity to file an amended complaint if he still wished to
proceed with his claims. Six of those cases remain, including this
one, which is now at the summary judgment stage.
Legal Standard Applicable to Civil Detainee’s Claim
The Fourteenth Amendment due process clause governs rather
than the Eighth Amendment because Plaintiff is a civil detainee, not
a prisoner serving a sentence. The Supreme Court stated in
Youngberg v. Romeo that "[p]ersons who have been involuntarily
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committed are entitled to more considerate treatment and
conditions of confinement than criminals whose conditions of
confinement are designed to punish." 457 U.S. 307, 322 (1982).
This difference was reiterated by the Seventh Circuit in Hughes v.
Scott, 816 F.3d 955, 956 (7th Cir. 2016); see also McGee v. Adams,
721 F.3d 474, 480 (7th Cir. 2013)(citing Youngberg but noting that
“the Supreme Court has not determined how much additional
protection civil detainees are entitled to beyond the protections
afforded by the Eighth Amendment bar on cruel and unusual
punishment.”); Rice ex rel. Rice v. Correctional Medical Services,
675 F.3d 650, 664 (7th Cir. 2012)( "[T]he Supreme Court has not
yet determined just how much additional protection the Fourteenth
Amendment gives to pretrial detainees.").
In application, the Fourteenth Amendment standard thus far
appears indistinguishable from the Eighth Amendment standard on
conditions of confinement claims. For example, the Seventh Circuit
has stated that a conditions of confinement claim by a civil detainee
requires an objectively serious deprivation and deliberate
indifference by the defendant. Sain v. Wood, 512 F.3d 886, 894
(7th Cir. 2008). This is the same standard governing an Eighth
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Amendment conditions of confinement claim by a prisoner. The
Seventh Circuit more recently confirmed in Smith v. Dart, 803 F.3d
304, 310 (7th Cir. 2015), that “[w]e have held that there is little
practical difference, if any, between the standards applicable to
pretrial detainees and convicted inmates when it comes to
conditions of confinement claims, and that such claims brought
under the Fourteenth Amendment are appropriately analyzed under
the Eighth Amendment test.”
However, the Seventh Circuit has also recently acknowledged
the difficulty of defining the legal standard applicable to detainees,
noting the “shifting sands of present day case authority.” Werner v.
Wall, 836 F.3d 751, 759 (7th Cir. 2016). In Smith v. Dart, even
though confirming the appropriateness of relying on Eighth
Amendment cases, the Seventh Circuit stated in dicta that the
subjective element requires a “‘purposeful, a knowing, or a possibly
reckless state of mind,’” arguably a lower hurdle than deliberate
indifference. 803 F.3d 304 n. 2 (quoted cite omitted). That dicta
was ultimately referring to the Supreme Court case of Kingsley v.
Hendrickson, 135 S.Ct. 2466, 2473 (2015), which held that a
defendant’s subjective state of mind in a pretrial detainee’s
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excessive force claim was relevant only to the extent that the
defendant’s actions were “purposeful or knowing.” After Kingsley,
though, the Seventh Circuit has continued to rely on the deliberate
indifference standard to pretrial detainees’ claims for lack of
medical care. See, e.g., Daniel v. Cook County, 833 F.3d 728, 73233 (2016).
At this point, the Court can avoid trying to define what greater
protection is afforded civil detainees as compared to prisoners.
Plaintiff’s claims survive summary judgment even under the Eighth
Amendment standard. Avoidance may no longer be possible when
faced with how the jury should be instructed, but that is a
discussion for another day.
Discussion
At the summary judgment stage, evidence is viewed in the
light most favorable to the nonmovant, with material factual
disputes resolved in the nonmovant's favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of
material fact exists when a reasonable juror could find for the
nonmovant. Id.
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“The 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)(citation omitted).
Defendants Aramark and Dredge
Viewing the evidence in the light most favorable to Plaintiff
means accepting his version of events, if his version is based on
personal knowledge.
Plaintiff is an insulin dependent diabetic. As part of his
diabetic diet, he was served mechanically separated chicken often
twice a day, particularly, mechanically separated chicken patties.
Plaintiff testified in his deposition that he became ill every time he
ate the mechanically separated chicken, regardless of how the
chicken was labeled. (Pl.’s Dep. p. 71, 75). According to Plaintiff,
the mechanically separated chicken smelled like sewage, and
Plaintiff suffered stomach cramps, profuse vomiting, and diarrhea
hours after eating the product. (Pl.’s Dep. p. 56, 76, 77, 80.) Once
he stopped eating the product, he no longer suffered those
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problems. (Pl.’s Dep. p. 87-88.) Plaintiff asserts that he talked to
Dredge about the mechanically separated chicken and about how
his meals were not in compliance with diabetic guidelines, but
Dredge told Plaintiff to “get the fuck out of my kitchen.” (Pl.’s Dep.
pp. 26-27, 87.) Plaintiff told Dredge that the mechanically
separated chicken was making him sick, but Dredge responded that
he “didn’t give a fuck, that he was going to continue serving that to
me.” (Pl.’s Dep. p. 29.) Dredge also told Plaintiff that “he doesn’t do
diabetic diets.” (Pl.’s Dep. p. 30.) As a result of Dredge’s refusal to
modify Plaintiff’s meal tray, Plaintiff took himself off the diabetic
diet. According to Plaintiff, the regular diet served less
mechanically separated chicken but contained more of the
carbohydrates which are contraindicated for his diabetes. (Pl.’s
Dep. 55, 56, 60.) The regular diet still served mechanically
separated chicken about 16 times in 28 days, which would average
to about four times per week.1 (Pl.’s Dep. 68.)
Plaintiff wants to remove mechanically separated chicken from
all meals. He also seeks a diabetic diet approved by the American
Diabetes Association.
1
Other Plaintiffs put the number at six times a week, but the difference is not material.
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Defendants Aramark and Dredge argue that the federal
regulations governing mechanically separated chicken do not
prohibit the serving of meals containing mechanically separated
chicken. They are correct. (Arrasmith Aff. para. 11)(“Approximately
1.5 billion pounds of mechanically separated chicken is produced
per year for human consumption.”) Defendant Dredge, Aramark’s
Food Services Director at Rushville, and Defendant Scott, the
Director of the facility, aver that they ate meals at Rushville
containing the chicken marked “for further processing only” without
problem. (Dredge Aff. para. 22; Scott Aff. para. 11.)
However, federal regulations require that mechanically
separated chicken used in food products does not 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).
As discussed in the Court’s order on summary judgment in
the original case, the label "further processing only" on the boxes
containing the mechanically separated chicken, coupled with 29
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C.F.R. §381.173(e), together create an inference in Plaintiff’s favor
that the chicken so marked should have been used only for soup
stock and like products.
Additionally, the labeling is beside the point in this case
because Plaintiff maintains that even the mechanically separated
chicken not marked “further processing only” made him vomit
profusely or have diarrhea every time he ate the product. Drawing
inferences in Plaintiff’s favor, Plaintiff could not eat the
mechanically separated chicken even if others could.
The Director of Nutrition & Operational Support Services for
Aramark (West Region), Cynthia Irizarry, avers that the meal plan at
Rushville is designed to exceed the minimum caloric and nutritional
requirements to ensure that residents’ nutritional and caloric needs
are met, even if the residents choose not to eat part of a meal.
(Irizarry Aff. 16.) She avers that residents who “refused to consume
dishes containing MSC [] would still receive an average of between
2586 and 2596 calories and 83.7 grams of protein per day.”
(Irizarry Aff. 18.) Even so, a reasonable jury could still find that
regularly providing food that made Plaintiff physically ill—vomiting
and diarrhea— was an objectively serious deprivation. See, e.g.,
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Prude v. Clark, 675 F.3d 732, 735 (7th Cir. 2012)(“sickening food”
(nutriloaf) which caused “substantial weight loss, vomiting, stomach
pains, and maybe an anal fissure . . . would violate the Eighth
Amendment.) Additionally, she does not address whether the meals
would be appropriate for a diabetic, with or without eating the
mechanically separated chicken.
Defendant argues that Plaintiff needs a medical expert to prove
that his symptoms were caused by the mechanically separated
chicken. The Court disagrees. Whether food makes a person sick
is within a layperson’s experience. Experiencing diarrhea or
vomiting every time one eats a certain food is a good clue. Plaintiff’s
testimony that he experienced the symptoms when he ate the
product and no longer experienced the symptoms when he stopped
eating the product is enough to allow an inference of causation.
Thus, a jury could rationally find that Plaintiff suffered an
objectively serious deprivation. A jury could also rationally find
that Defendants Aramark and Dredge were deliberately indifferent
to that deprivation. These Defendants had notice of the problem
once served with the original lawsuit in early 2011, and probably
before then through the grievances and complaints they received.
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Plaintiff personally told Defendant Dredge that Plaintiff was unable
to eat the mechanically separated chicken and that the meals were
not in compliance with a diabetic diet.
Defendant Dredge argues that he cannot be held liable
because of his supervisory position. But Dredge is not being sued
because he is a supervisor. He is being sued because, looking at
the record in the light most favorable to Plaintiff, Defendant Dredge
directly participated in the violation Plaintiffs’ constitutional rights
by failing to take reasonable action despite knowing that the
mechanically separated chicken was making Plaintiff ill. Inferences
arise in Dredge’s favor, too, but this is the summary judgment
stage.
Aramark argues that Plaintiffs have not proven that a policy
attributable to Aramark caused Plaintiffs’ deprivation. However,
Aramark was responsible for providing the meals, including
choosing and ordering the ingredients to make those meals.
Aramark officials approved the use of the mechanically separated
chicken and continued that approval after a significant number of
residents complained the product made them sick. That is the
policy and practice at issue which is attributable to Aramark.
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Defendants Aramark and Dredge reassert their argument that
they are not state actors. The Court remains of the opinion that
they are state actors because they have assumed an essential state
function. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,
827 (7th Cir. 2009); Jubeh v. Dart, 2011 WL 6010267 *2(not
published in federal reporter)(N.D. Ill. 2011)(rejecting Aramark’s
state actor argument and collecting cases).
The Court does agree with Defendants Aramark and Dredge
that injunctive relief is no longer available since Plaintiff agrees that
the mechanically separated chicken, however labeled, is no longer
served. (Pl.’s Dep. 115-16.)
Defendants Aramark and Dredge also argue that Plaintiff’s
claims about a lack of an adequate diabetic diet are time-barred.
Plaintiff does not dispute that he removed himself from the diabetic
diet in April 2011. He did not make his allegations about Dredge’s
refusal to revise the diabetic diet until he filed his amended
complaint in 2014. However, the Court had stayed this case from
January 2012 until August 2014, so Plaintiff cannot be faulted for
not filing an amended complaint before then. Additionally,
Plaintiff’s original complaint filed in 2011 mentioned that he was
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diabetic, and Dredge’s alleged refusal to revise the diabetic diet to
exclude mechanically separated chicken arguably continued until
mechanically separated chicken was no longer served at some
undetermined date. Plaintiff still seeks a diabetic diet, which
suggests that the refusal to revise the diabetic diet is ongoing. On
this record, Defendants Dredge and Aramark have not met their
burden of showing this claim is barred by the statute of limitations.
Defendant Scott
Plaintiff holds Defendant Scott, the Director of the Rushville
Treatment and Detention Center, responsible for the serving of the
mechanically separated chicken. (Pl.’s Dep. 144-45.) Drawing an
inference of deliberate indifference against Defendant Scott is
difficult. Plaintiff does not dispute that Jennifer Blaesing, then the
Rehabilitation Director, listened to the residents’ complaints, did
her own research on mechanically separated chicken, and relied on
Defendant Dredge’s representation that the product met the
requirements of the contract between Aramark and the facility.
(Blaesing Aff. paras. 7-8.) Defendant Scott, in turn, would have
been justified in relying on Defendant Blaesing’s conclusions from
Blaesing’s inquiry into the matter. Burks v. Raemisch, 555 F.3d
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592 (7th Cir. 2009)(“The division of labor is important not only to
bureaucratic organization but also to efficient performance of tasks
. . .”) Plaintiff does not appear to hold Defendant Scott responsible
on the diabetic diet claims, but, in any event, no evidence suggests
that Defendant Scott knew that Plaintiff’s diabetic diet was
inadequate, that the regular meals were not advised for Plaintiff’s
diabetes, or that Plaintiff felt forced to eat the regular meals to avoid
the mechanically separated chicken patties on the diabetic trays.
The Court need not decide whether a reasonable inference of
deliberate indifference, or some other sufficiently culpable state of
mind, arises against Defendant Scott. Defendant Scott is entitled to
qualified immunity even if he did violate Plaintiff’s rights.2 Pearson
v. Callahan, 555 U.S. 223, 236 (2009)(courts may skip the question
of whether a right was violated and answer only whether the right
was clearly established).
The Supreme Court has recently reiterated the importance of
qualified immunity. White v. Pauly, 137 S.Ct. 548 (7th Cir. 2017).
Defendants Aramark and Dredge do not assert qualified immunity. See Zaya v. Sood, 836
F.3d 800 (7th Cir. 2016)(“The Supreme Court has held that employees of privately operated
prisons may not assert a qualified-immunity defense. See Richardson v. McKnight, 521 U.S.
399, 412, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997). We have construed that holding to extend
to employees of private corporations that contract with the state to provide medical care for
prison inmates. See Currie v. Chhabra, 728 F.3d 626, 631–32 (7th Cir. 2013); see also Shields
v. Ill. Dep't of Corrs., 746 F.3d 782, 794 n.3 (7th Cir. 2014).”).
2
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Qualified immunity protects a government actor from liability
unless the government actor violates a “clearly established statutory
or constitutional right[] of which a reasonable person would have
known.” White v. Pauly, 137 S.Ct. 548, 550 (2017)(quoting Mullenix
v. Luna, 136 S.Ct 305, 308 (2015)(internal quotations omitted). A
right is clearly established if the right is “beyond debate” under
existing precedent at the time the violation occurred. Id. Qualified
immunity protects “all but the plainly incompetent or those who
knowingly violate the law.” Id.
A recitation of cases establishing the obvious rule that
detainees are entitled to nutritionally adequate food is not enough
to defeat qualified immunity. A case must be factually similar
enough to this case to render Defendants’ actions unconstitutional
beyond debate.
The Court has not been able to find any case sufficiently
similar to this case, whether under the Eighth or Fourteenth
Amendment. The cases the Court did find in which possible
constitutional violations were identified involved a more objectively
serious risk to health and also a more systemic deprivation than the
circumstances in this case.
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For example, the prisoner in Prude v. Clark, 675 F.3d 732,
735 (7th Cir. 2012) was fed a “sickening food” called nutriloaf for all
his meals during his temporary stays in jail for 7-10 days each.
After two days during one of the stays, he began vomiting and
stopped eating the nutriloaf, living instead on bread and water and
ultimately losing 8.3% of his body weight. Here, in contrast,
Plaintiff offers no evidence that he lost weight or suffered nutritional
deficiencies. Compare with Smith v. Dart, 803 F.3d 304, 312 (7th
Cir. 2015)(detainee’s allegation that food was “‘well below
nutritional value’” stated claim). Plaintiff does not dispute that,
from a nutritional standpoint, he was provided enough protein from
the regular meals even without eating the mechanically separated
chicken. Plaintiff’s diabetes complicates the issue, but there is no
evidence that Defendant Scott knew that Plaintiff was being denied
an adequate diabetic diet or that the mechanically separated
chicken played a role in Plaintiff’s alleged lack of an adequate
diabetic diet.
In short, the Court has not found a case which establishes a
clear right to not be served a sickening entree four to six times per
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week, so long as no known nutritional inadequacies, loss of weight,
or danger to health results from avoiding the sickening food.
Conclusion
The Court must draw reasonable 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.")
Plaintiffs’ testimony allows a reasonable inference that he suffered
an objectively serious deprivation. Defendant Aramark’s
responsibility to provide food service, Defendant Dredge’s position
as Food Service Director, the original lawsuit filed in 2010,
Plaintiffs’ joinder in that original lawsuit, the refusal by Aramark
and Dredge to stop serving the mechanically separated chicken
labeled “for further processing only” for years, and Dredge’s refusal
to revise Plaintiff’s diabetic diet allow a reasonable inference of
deliberate indifference against Defendants Aramark and Dredge.
Defendant Scott is entitled to qualified immunity. A trial will be
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scheduled, if necessary, after the Magistrate Judge holds a
settlement conference.
IT IS ORDERED:
(1) The motion for summary judgment by Defendants
Aramark and Dredge is denied (73).
(2) The motion for summary judgment by Defendant Scott is
granted on the grounds of qualified immunity (81).
(3) This case is referred to the Magistrate Judge for a
settlement conference.
(4) The clerk is directed to terminate Defendant Scott.
(5) The clerk is directed to notify the Magistrate Judge of the
referral.
ENTER: May 1, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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