Edmonds v. Aramark, et. al. et al
Filing
9
MERIT REVIEW OPINION: Case proceeds against Defendants Aramark and Dredge. The clerk is directed to terminate Defendants Vincent, Simpson, Kunkel, Scott, John and Jane Does, and "all other Aramark employees." The 1/16/2018 text order asse ssing the filing fee pursuant to 28 U.S.C.§1915(b)(1) is vacated because Plaintiff is not considered a prisoner with in the meaning of that section. The clerk is directed to assess the partial filing fee using the Rushville procedures. Plainti ff's request for a reduction in the filing fee 8 is denied as moot since the Court has vacated that order. The Clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. The Clerk is directed to attempt service on Defendants pursuant to the standard procedures. Rule 16 Deadline set for 3/26/2018. SEE WRITTEN MERIT REVIEW OPINION. Entered by Judge Sue E. Myerscough on 01/25/2018.
E-FILED
Thursday, 25 January, 2018 11:23:37 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
MATT EDMONDS,
Plaintiff,
v.
ARAMARK, et al.,
Defendants.
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18-cv-4001
MERIT REVIEW OPINION
Plaintiff, proceeding pro se and detained in the Rushville
Treatment and Detention Center, seeks leave to proceed in forma
pauperis.
The "privilege to proceed without posting security for costs
and fees is reserved to the many truly impoverished litigants who,
within the District Court's sound discretion, would remain without
legal remedy if such privilege were not afforded to them." Brewster
v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972).
Additionally, a court must dismiss cases proceeding in forma
pauperis "at any time" if the action is frivolous, malicious, or fails to
state a claim, even if part of the filing fee has been paid. 28 U.S.C.
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§ 1915(d)(2). Accordingly, this Court grants leave to proceed in
forma pauperis only if the complaint states a federal claim.
In reviewing the complaint, the Court accepts the factual
allegations as true, liberally construing them in Plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However,
conclusory statements and labels are insufficient. Enough facts
must be provided to "'state a claim for relief that is plausible on its
face.'" Alexander v. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(quoted
cite omitted).
Plaintiff alleges that he has a tomato allergy and that a doctor
has prescribed Plaintiff a “no tomato, no high acid” diet. Instead of
providing Plaintiff a balanced diet that is free of tomatoes and high
acid, Defendants allegedly substitute starch for protein and provide
meals too low in calories.
Plaintiff states a plausible claim for the denial of food adequate
to meet Plaintiff’s nutritional and caloric needs that complies with
the doctor’s order. However, only Aramark and its employee, Steve
Dredge (the dietary manager) are plausibly responsible on this claim
on the present allegations. Aramark provides the food service, and
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Steve Dredge supervises the provision of that food service. At this
point the case will proceed only as to these two defendants.
IT IS ORDERED:
1.
The 1/16/18 text order assessing the filing fee pursuant
to 28 U.S.C. § 1915(b)(1) is vacated because Plaintiff is not
considered a prisoner within the meaning of that section.
2.
The clerk is directed to assess the partial filing fee
using the Rushville procedures.
3.
Plaintiff has filed what appears to be a supplemental
petition to proceed in forma pauperis. (d/e 8.) Plaintiff seems to
ask for a reduction in the $9.04 filing fee because Plaintiff sends
some of the money received from his mother back to his mother due
to his mother’s dementia. Plaintiff’s request is denied as moot
(d/e 8) since the Court has vacated that order. Plaintiff may
renew his request after the clerk assesses the filing fee pursuant to
the Rushville procedures.
4.
Pursuant to a review of the Complaint, the Court finds
that Plaintiff states a constitutional claim against Defendants
Aramark and Dredge for failing to provide Plaintiff food adequate to
meet Plaintiff’s nutritional and caloric needs and in compliance with
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the doctor’s orders. This case proceeds solely on the claims
identified in this paragraph. Any additional claims shall not be
included in the case, except at the Court’s discretion on motion by a
party for good cause shown or pursuant to Federal Rule of Civil
Procedure 15.
5.
Defendants Vincent, Simpson, Kunkel, Scott, John and
Jane Does, and “all other Aramark employees” are dismissed
without prejudice for failure to state a claim.
6.
This case is now in the process of service. Plaintiff is
advised to wait until counsel has appeared for Defendants before
filing any motions, in order to give Defendants notice and an
opportunity to respond to those motions. Motions filed before
Defendants' counsel has filed an appearance will generally be
denied as premature. Plaintiff need not submit any evidence to the
Court at this time, unless otherwise directed by the Court.
7.
The Court will attempt service on Defendants by sending
each Defendant a waiver of service. Defendants have 60 days from
the date the waiver of service is sent to file an Answer. If
Defendants have not filed Answers or appeared through counsel
within 90 days of the entry of this order, Plaintiff may file a motion
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requesting the status of service. After counsel has appeared for
Defendants, the Court will enter a scheduling order setting
deadlines for discovery and dispositive motions.
8.
With respect to a Defendant who no longer works at the
address provided by Plaintiff, the entity for whom that Defendant
worked while at that address shall provide to the Clerk said
Defendant's current work address, or, if not known, said
Defendant's forwarding address. This information shall be used
only for effectuating service. Documentation of forwarding
addresses shall be retained only by the Clerk and shall not be
maintained in the public docket nor disclosed by the Clerk.
9.
Defendants shall file an answer within 60 days of the day
the waiver of service is sent by the Clerk. A motion to dismiss is
not an answer. The answer should include all defenses appropriate
under the Federal Rules. The answer and subsequent pleadings
shall be to the issues and claims stated in this Opinion.
10. Once counsel has appeared for a Defendant, Plaintiff need
not send copies of his filings to that Defendant or to that
Defendant's counsel. Instead, the Clerk will file Plaintiff's document
electronically and send a notice of electronic filing to defense
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counsel. The notice of electronic filing shall constitute service on
Defendants pursuant to Local Rule 5.3. If electronic service on
Defendants is not available, Plaintiff will be notified and instructed
accordingly.
11. Counsel for Defendants is hereby granted leave to depose
Plaintiff at Plaintiff's place of confinement. Counsel for Defendants
shall arrange the time for the deposition.
12. Plaintiff shall immediately notify the Court, in writing, of
any change in his mailing address and telephone number.
Plaintiff's failure to notify the Court of a change in mailing address
or phone number will result in dismissal of this lawsuit, with
prejudice.
13.
If a Defendant fails to sign and return a waiver of service
to the clerk within 30 days after the waiver is sent, the Court will
take appropriate steps to effect formal service through the U.S.
Marshal's service on that Defendant and will require that Defendant
to pay the full costs of formal service pursuant to Federal Rule of
Civil Procedure 4(d)(2).
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14. The clerk is directed to terminate Defendants Vincent,
Simpson, Kunkel, Scott, John and Jane Does, and “all other
Aramark employees.”
15. The Clerk is directed to enter the standard qualified
protective order pursuant to the Health Insurance Portability
and Accountability Act.
16. The Clerk is directed to attempt service on Defendants
pursuant to the standard procedures.
ENTERED: 01/25/2018
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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