Collins v. Aramark Correctional Services LLC et al
Filing
35
OPINION: Defendants' motion for summary judgment is denied 30 . This case is referred to the Magistrate Judge for a settlement conference. The clerk is directed to notify the Magistrate Judge of the referral. Entered by Judge Sue E. Myerscough on 2/16/2017. (ME, ilcd)
E-FILED
Thursday, 16 February, 2017 02:31:50 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SIDNEY COLLINS,
Plaintiff,
v.
ARAMARK CORRECTIONAL
SERVICES, INC., and
STEVE DREDGE,
Defendants.
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14-CV-3402
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 motions
are denied.
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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.
Summary judgment was denied in the original case, and then
the original case settled in July 2014. Part of the settlement was an
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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. 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
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
Page 3 of 16
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
under the Fourteenth Amendment are appropriately analyzed under
the Eighth Amendment test.”
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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).
At this point, the Court can avoid trying to define what greater
protection is afforded civil detainees as compared to prisoners.
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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.
Viewing the evidence in the light most favorable to Plaintiff
means accepting his version of events, if his version is based on his
personal knowledge. Plaintiff testified in his deposition that he ate
the mechanically separated chicken marked “for further processing
only” from the middle of 2010, when Aramark purportedly began
serving the product, until May 2012, when Plaintiff became so sick
that he was hospitalized. (Pl.’s Dep. 50-56.) When he ate the
product he suffered “diarrhea, nausea, vomiting, and upset
stomach.” (Pl.’s Dep. p. 53). In May 2012, the problem became
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worse, according to Plaintiff, because Plaintiff was placed in special
management and was not able to shop at the commissary for other
food. Plaintiff had to eat what was provided, which meant eating
mechanically separated chicken labeled “for further processing
only” from four to six times per week. (Pl.’s Dep. p. 55.) Plaintiff
saw Dr. Lochard twice over the next two weeks because Plaintiff felt
ill. Plaintiff continued to feel worse each day for about two weeks
until one day, 15 minutes after eating the mechanically separated
chicken for further processing only, he “could hardly stand up in
my room. I was vomiting. I had diarrhea. I was sick and I had to
go to the hospital. [The doctor] had put me on a liquid diet to clean
me out. He had to give me a shot and keep me in the hospital.”
(Pl.’s Dep. p. 54.) After his hospital stay, Plaintiff never ate the
mechanically separated chicken for further processing again and
his gastrointestinal problems ceased. (Pl.’s Dep. 76.) Plaintiff has
not been sick since he stopped eating the product. 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.’”
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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 argue that the federal regulations governing
mechanically separated chicken do not prohibit the serving of meals
containing mechanically separated chicken. They are correct.
Further, 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. 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
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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”
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
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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.
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. Prude v.
Clark, 675 F.3d 732, 735 (7th Cir. 2012)(“sickening food” (nutriloaf)
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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, avers that he ate meals at Rushville containing the
chicken marked “for further processing only” without problem and
saw other employees do so, too. (Dredge Aff. para. 22.) Plaintiff, in
contrast, maintains that he got sick when he ate the mechanically
separated chicken labeled “for further processing only.” Both
assertions 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 his
personal knowledge and experience. Plaintiff has personal
knowledge that he suffered diarrhea, vomiting, nausea, and feeling
ill when he ate the mechanically separated chicken marked “for
further processing only.” He also has personal knowledge that
those problems stopped after he stopped eating the product.
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.
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Whether food makes a person sick is within a layperson’s
experience. Experiencing diarrhea 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.
Defendants argue that causation is particularly hard to sort
out because Plaintiff has Crohn’s disease. However, the idea that
Plaintiff has Crohn’s disease is based on Plaintiff’s own testimony
that Plaintiff saw that diagnosis in his IDOC medical records. No
one ever told Plaintiff that he had Crohn’s disease. (Pl.’s Dep. 6162, 67-68.) Defendants did not file any medical records. The
medical records that are in the docket were filed by Plaintiff and are
illegible. Further, even if Plaintiff has Crohn’s disease, his
symptoms still stopped after he stopped eating the mechanically
separated chicken marked “for further processing only.”
Thus, 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 were deliberately
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indifferent to that deprivation. Plaintiff testified that he filed two
grievances to Sandra Simpson, the grievance examiner. (Pl.’s Dep.
59-61.) Defendant Dredge does not recall seeing those grievances,
but complaints about the food service were to be forwarded to the
Food Service Director, Defendant Dredge, pursuant to the contract
between Aramark and the Illinois Department of Human Services.
(d/e 31-2, p. 14.) This allows an inference that Defendants were
made aware of the many complaints by residents. Further, even if
Defendants never learned of Plaintiff’s complaints, a jury could
rationally find that Defendants had notice of the problem once
served with the original lawsuit in early 2011. Despite that
knowledge, they continued serving the mechanically separated
chicken marked “for further processing only” until 2014.
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 of Plaintiff’s constitutional
rights by failing to take reasonable action despite knowing that the
mechanically separated chicken for further processing was making
Page 13 of 16
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. Aramark
was responsible for providing the meals, including determining 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 the
residents complained the product made them sick. That is the
policy and practice at issue.
Defendants 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 that injunctive relief is
no longer available since the mechanically separated chicken
marked “for further processing only” is no longer being served.
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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
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 own testimony allows a reasonable inference that he
suffered an objectively serious deprivation. Plaintiff’s grievances,
Defendant Dredge’s position as Food Service Director, the original
lawsuit filed in 2010, Plaintiff’s joinder in that original lawsuit, and
Defendants’ refusal to stop serving the mechanically separated
chicken labeled “for further processing only” allow a reasonable
inference of deliberate indifference. Summary judgment is denied.
A trial will scheduled, if necessary, after the Magistrate Judge holds
a settlement conference.
THEREFORE, IT IS ORDERED THAT Defendants’ motion
for summary judgment is denied (30). This case is referred to
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the Magistrate Judge for a settlement conference. The clerk is
directed to notify the Magistrate Judge of the referral.
ENTER: 2/16/2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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