Hughes v. Aramark Correctional Services LLC et al
Filing
148
OPINION: The motion for summary judgment by Defendants Ashby, Blaesing, and Scott is granted in part and denied in part. (d/e 130 .) On qualified immunity grounds, Defendants Ashby, Blaesing, and Scott are granted summary judgment on Plaintiff' ;s claim about the mechanically separated chicken marked for further processing only. The motion is otherwise denied. The motion for summary judgment by Defendant Dredge is denied. (d/e 125 .) The final pretrial conference is set for September 10, 2018 at 9:30 a.m. Plaintiff shall appear by video. Defense counsel shall appear by video or in person. Magistrate Judge Schanzle-Haskins will pick the jury, with the consent of the parties, on December 10, 2018 at 1:00 p.m. The jury trial will begin on December 11, 2018 at 9:00 a.m. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 8/2/2018. (GL, ilcd)
E-FILED
Thursday, 02 August, 2018 04:05:27 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
MICHAEL HUGHES,
Plaintiff,
v.
STEVE DREDGE, et al.
Defendants.
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11-CV-3320
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 which arrived in boxes marked “for further
processing only.” He also pursues a constitutional claim arising
from the alleged unsanitary food service practices at the facility.
The Court denied the first round of summary judgment
motions because the Court needed more information on the division
of responsibilities between DHS and Aramark regarding the food
service and more information on the procedures, training, and
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supervision in place to ensure that food is prepared, served, and
stored in a sanitary manner. The Court also asked for more
briefing on the legal standard applicable in light of Plaintiff’s status
as a civil detainee.
The second round of summary judgment motions are now
before the Court. Those motions must also be denied except as to
qualified immunity for the DHS Defendants on the claim about the
mechanically separated chicken marked for further processing only.
Defendants make good arguments and jurors could certainly find in
their favor, but reasonable jurors could also find in Plaintiff’s favor.
Analysis
As to Plaintiff’s claim about the mechanically separated
chicken marked for further processing only, Plaintiff contends that
the meals made him feel queasy and suffer loose bowels, sometimes
diarrhea. (Pl.’s Dep. 42, 95.) The extent and frequency of this
reaction was enough to cause Plaintiff to avoid eating the food
altogether. Plaintiff did not have a problem with all the meals
prepared with mechanically separated chicken, like pre-formed
chicken patties, just certain meals which were prepared with
mechanically separated chicken for further processing only, like the
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chili and spaghetti sauce, which was “heinous.” (Pl.’s Dep. 90, 92,
131.)
As the Court concluded in the other cases, serving food 4-6
times a week that is so disgusting as to be inedible is arguably an
objectively serious deprivation for civil detainees, or at least that is
a question for the jury. The personal involvement and authority of
each Defendant is also a question for the jury. The mechanically
separated chicken marked for further processing only continued to
be served for years, despite over 60 lawsuits filed by some 80
residents. A reasonable juror could conclude that Defendants knew
about the problem simply from the furor of so many residents.
However, as the Court has held in other cases with claims
about mechanically separated chicken marked for further
processing only, the DHS Defendants are entitled to qualified
immunity. The Supreme Court reiterated the importance of
qualified immunity in White v. Pauly, 137 S.Ct. 548 (7th Cir. 2017).
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.” Id. at 550. A right is clearly established if the right is
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“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.1
The Court has not been able to find any case sufficiently
similar to this case, either 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.
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
This Court did deny Defendant Ashby qualified immunity in the lead “chicken” case, 10cv-3334, but that was before the Supreme Court’s decision in White v. Pauly.
1
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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). In short, the Court has not found
a case which establishes a clear right not to be served a sickening
entree four to six times per week, every week, so long as no known
nutritional inadequacies, loss of weight, or danger to health results
from avoiding the sickening food. Qualified immunity might not
apply to similar claims in the future in this Court, in light of the
fact that the Court has concluded the jury could find a
constitutional violation.
Defendant Dredge asserts that he, too, is entitled to qualified
immunity, citing Meadows v. Rockford Housing Authority, 861 F.3d
672 (7th Cir. 2017). The Seventh Circuit in Meadows held that
employees of a private security company were entitled to qualified
immunity when they acted at the direct instruction of a city
employee to change the locks on an apartment operated by the city
housing authority. Here, though, Defendant Dredge is not directly
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supervised by DHS employees. Defendant Dredge and his employer
Aramark have undertaken to provide all food service at the facility,
which means that Dredge falls into the same camp as private
medical care providers at the prison, who are not entitled to
qualified immunity. See Estate of Clark v. Walker, 865 F.3d 544
(7th Cir. 2017)(privately employed nurse at county jail cannot claim
qualified immunity); Petties v. Carter, 836 F.3d 722 (7th Cir.
2016)(“Even if the defendants preserved this argument, qualified
immunity does not apply to private medical personnel in
prisons.”(citing Shields v. Illinois Dep't of Corrections, 746 F.3d 782,
794 (7th Cir. 2014); Tapp v. Proto, 718 F.Supp.2d 598 (E.D.
Pa.)(“The Aramark employees in this case, including Defendant
Proto and his kitchen staff, . . . , have no more reason than private
prison guards or medical staff to receive qualified immunity, . . . .”).
Defendant Dredge also 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
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mechanically separated chicken marked for further processing only
was making residents ill and the food service conditions and
practices were unsanitary. The Court also rejects Defendant
Dredge’s argument that he is not a state actor. Dredge is a state
actor because he 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).
Plaintiff’s claim about unsanitary kitchen conditions and
unsanitary food service practices survives summary judgment as to
all Defendants. Plaintiff submits affidavits recounting unclean
conditions in the kitchen and food storage area, along with unsafe
food preparation practices, including chronic understaffing,
congealed animal blood on the cooler floor, the cutting of raw meat
and vegetables with the same knife, the intentional reduction of
soap used in the dishwasher, rotten produce, maggots, roaches,
vermin, standing water, mold, and bacteria. (Affidavits attached to
Plaintiff’s Response, d/e 139-6 pp. 6-12; also affidavits filed at d/e
140.) Whether these kinds of problems are systemic or isolated
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depends on whether the residents’ descriptions are believed, which
is for the jury to decide. If the problems are systemic, a rational
juror could conclude that the past and current kitchen conditions
and food service practices are objectively serious deprivations.
Additionally, if Plaintiff is believed, Defendants were repeatedly
made aware of these problems but did nothing. Drawing inferences
in Plaintiff’s favor, a jury could conclude that Defendants were and
are deliberately indifferent to the risk of food contamination and
food-borne illnesses. See, e.g., Green v. Beth, 663 Fed.Appx. 471
(7th Cir. 2016)(allegation of injuries caused by ongoing problem with
contaminated food stated claim). Plaintiff does not have evidence of
a serious injury, but that goes to damages, not to whether
injunctive relief is warranted. See Merritte v. Kessel, 561 Fed.Appx.
546 (7th Cir. 2014)(not published in Fed.Rptr.)(“It is well-established
that injunctive relief is appropriate ‘to prevent a substantial risk of
serious injury from ripening into actual harm.’”)(quoting Farmer v.
Brennan, 511 U.A. 825, 845 (1994)). Further, qualified immunity is
not warranted on this claim. If the kitchen conditions and food
service practices are as described by the residents, deliberately
turning a blind eye would obviously violate the residents’ clearly
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established right to safe food. See Kemp v. Liebel, 877 F.3d 346,
351 (7th Cir. 2017)(right may be clearly established if violation
patently obvious, even in absence of closely analogous factual case).
IT IS THEREFORE ORDERED:
(1)
The motion for summary judgment by Defendants Ashby,
Blaesing, and Scott is granted in part and denied in part. (d/e
130.) On qualified immunity grounds, Defendants Ashby,
Blaesing, and Scott are granted summary judgment on
Plaintiff’s claim about the mechanically separated chicken
marked for further processing only. The motion is otherwise
denied.
(2) The motion for summary judgment by Defendant Dredge
is denied. (d/e 125.)
(3) The final pretrial conference is set for September 10, 2018 at
9:30 a.m. Plaintiff shall appear by video. Defense counsel shall
appear by video or in person.
(4) Magistrate Judge Schanzle-Haskins will pick the jury, with
the consent of the parties, on December 10, 2018 at 1:00 p.m.
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(5) The jury trial will begin on December 11, 2018 at 9:00 a.m.
The Court will send out proposed jury instructions for discussion at
the final pretrial conference.
(6) By August 28, 2018 the parties shall file: 1) an agreed
proposed final pretrial order; 2) alternate or additional proposed
jury instructions (not duplicative of the Court's); and, 3) motions in
limine (to be orally argued at the final pretrial conference).
(7) The clerk is directed to issue writs for Plaintiff’s personal
appearance at the jury selection and trial.
(8) The clerk is directed to issue a video writ for Plaintiff’s
appearance at the final pretrial conference.
(9) The clerk is directed to schedule the jury selection on
Magistrate Judge Schanzle-Haskins’ calendar.
ENTERED: August 2, 2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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