Cozart v. Aramark Correctional Services LLC et al

Filing 66

OPINION: The motion for summary judgment by Defendants Aramark and Dredge is denied. (d/e 61.) The motion for summary judgment by Defendants Blaesing and Scott is granted on the grounds of qualified immunity. (de 59.) This case is referred to t he Magistrate Judge for a settlement conference. The clerk is directed to terminate Defendants Blaesing and Scott. The clerk is directed to notify the Magistrate Judge of the referral. (SEE WRITTEN OPINION.) Entered by Judge Sue E. Myerscough on 11/20/2017. (GL, ilcd)

E-FILED

Monday, 20 November, 2017 08:38:31 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JERRY COZART,
Plaintiff,
v.
ARAMARK CORRECTIONAL
SERVICES, LLC,
STEVE DREDGE, JENNIFER
BLAESING, AND GREGG
SCOTT,
Defendants.

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12-cv-3150

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.” Before the Court are Defendants’ motions for
summary judgment. For the reasons explained below, the motion
by Defendants Aramark Correctional Services LLC (“Aramark”) and

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Dredge is denied. The motion by Defendants Scott and Blaesing 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,
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.

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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.
After the original case settled, the plaintiffs in the other cases
were given an opportunity to file an amended complaint if they still
wished to proceed with their claims. Three 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
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
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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
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

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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
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).
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At this point, the Court can avoid trying to define what greater
protection is afforded civil detainees as compared to prisoners.
Plaintiff’s claim survives 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.
“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
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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 maintains that eating the
mechanically separated chicken marked “for further processing
only” smelled bad and made him physically ill when he ate it,
causing cramping, frequent trips to the toilet, and then
constipation. (Am. Compl. p. 3; Pl.’s Dep. p. 85.) Plaintiff may have
difficulty convincing the jury that the mechanically separated
chicken marked “for further processing only” was causing these
problems, since Plaintiff’s constipation continued after the product
stopped being served. However, if Plaintiff became sick every time
he ate the product that is some evidence of causation.
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. Plaintiff does not dispute Defendants
evidence that mechanically separated chicken is safe to eat (if
properly prepared) and that many food products sold today contain
mechanically separated chicken. (Arrasmith Aff. para.

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11)(“Approximately 1.5 billion pounds of mechanically separated
chicken is produced per year for human consumption.”)
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
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.
Defendants’ evidence allows a competing inference, but that
only demonstrates a factual dispute for the jury to decide. For
example, Dr. Scott Stillwell, the Vice President of Food Safety and
Quality Assurance at Tyson Foods, Inc., avers that the mechanically
separated chicken sold to Aramark “for approximately nine years”
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met the standards under 9 C.F.R. 381.173(b) and (c). He avers that
the purpose of the "for further processing only" label was 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.)
A reasonable juror could wonder why Tyson would label all its
mechanically separated chicken “for further processing only” when
that term has a special meaning under § 381.173(e). Did Tyson sell
mechanically separated chicken which required the label “for
further processing” under §381.173(e)? If so, how was that product
labeled? Dr. Stillwell’s affidavit creates but does not compel an
inference in Defendants’ favor.
Defendants also offer the affidavit of Dr. Regenstein, a
Professor of Food Science, but Dr. Regenstein offers only the
unremarkable conclusion that mechanically separated chicken,
when properly prepared, is safe to eat. (Regenstein Aff. para. 6.) He
does not address if mechanically separated chicken falling under §
381.173(e) could cause gastrointestinal distress.

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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 was an
objectively serious deprivation. See, e.g., 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.)
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.) Plaintiff, in contrast, maintains that he got sick
when he ate the mechanically separated chicken labeled “for further
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processing only.” Both versions could be true—perhaps some
tolerated this food without problem while others could not. In any
event, the Court must accept Plaintiff’s version to the extent that
version is based on personal knowledge and experience. An
inference arises in favor of Plaintiff that the product was intolerable
to a significant number of residents.
Defendants argue that Plaintiff needs a medical expert to prove
that his symptoms were caused by the mechanically separated
chicken labeled “for further processing only.” The Court disagrees.
Whether food makes a person sick is within a layperson’s
experience. Cramping and frequent defecation every time one eats
a certain food are good clues. A jury could rationally find that
Plaintiff suffered an objectively serious deprivation caused by the
mechanically separated chicken labeled “for further processing
only.”
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. Despite that knowledge,
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they continued to insist that the product was fine. They might still
be serving the product if the residents had not filed lawsuits.
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 Plaintiff’s constitutional rights
by failing to take reasonable action despite knowing that the
mechanically separated chicken for further processing was making
a significant number of residents ill. Inferences arise in Dredge’s
favor, too, but this is the summary judgment stage.
Aramark argues that Plaintiff has not proven that a policy
attributable to Aramark caused Plaintiff’s 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 labeled “for further processing only” 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 the mechanically separated chicken marked
“for further processing only” is no longer being served.
Defendants Blaesing and Scott
Drawing an inference of deliberate indifference against
Defendants Scott and Blaesing is difficult. Plaintiff does not dispute
that Defendant Blaesing 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
. . .”)
However, the Court need not decide whether a reasonable
inference of deliberate indifference, or some other sufficiently
culpable state of mind, arises against Defendants Blaesing and
Scott. Defendants Blaesing and Scott are entitled to qualified
immunity even if they did violate Plaintiff’s rights.1 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).
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

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).”).
1

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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.
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.
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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, the
mechanically separated chicken for further processing only was
served only six out of twenty-one meals per week, and Plaintiff lost
no weight. Nor is there evidence that Plaintiff suffered from
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 even
if he did not eat the mechanically separated chicken marked “for
further processing only.”
In short, the Court has not found a case which establishes a
clear right to not be served a sickening entree six times per week, so
long as no nutritional inadequacies or loss of weight results from
avoiding the sickening food.
Conclusion
The Court must draw reasonable inferences in Plaintiff’s favor
at this stage and may not weigh the strength of competing
inferences. Stokes v. Board of Educ. of the City of Chicago, 599
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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.")
Plaintiff’s 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,
Plaintiff’s joinder in that original lawsuit, and the refusal by
Aramark and Dredge to stop serving the mechanically separated
chicken labeled “for further processing only” for years allow a
reasonable inference of deliberate indifference against Defendants
Aramark and Dredge. Defendants Blaesing and Scott are entitled to
qualified immunity. A trial will be 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. (d/e 61.)
(2) The motion for summary judgment by Defendants Blaesing
and Scott is granted on the grounds of qualified immunity. (de 59.)
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(3) This case is referred to the Magistrate Judge for a
settlement conference.
(4) The clerk is directed to terminate Defendants Blaesing and
Scott.
(5) The clerk is directed to notify the Magistrate Judge of the
referral.
ENTER: November 20, 2017
FOR THE COURT:

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

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