Blake v. Aramark Corporation et al

Filing 10

ORDER ENTERED: Plaintiff's motion 3 for leave to proceed in forma pauperis is granted. Plaintiff's renewed motion 8 for appointment of counsel is denied without prejudice. Plaintiff is granted twenty (20) days to show cause why the complaint should not be summarily dismissed as stating no claim for relief against defendants. Signed by Senior District Judge Sam A. Crow on 1/10/2012. (Mailed to pro se party Shaidon Blake by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHAIDON BLAKE,
aka SHAMVOY SMITH
Plaintiff,
v.

CASE NO. 11-3085-SAC

ARAMARK CORPORATION, et al.,
Defendants.

O R D E R
Plaintiff is a Maryland prisoner seeking relief under 42 U.S.C.
§ 1983 on allegations related to his confinement in the Hutchinson
Correctional Facility (HCF) in Kansas pursuant to an Interstate
Corrections Compact.

Plaintiff has paid the initial partial filing

fee assessed by the court under 28 U.S.C. § 1915(b)(1), and is
granted leave to proceed in forma pauperis.

Plaintiff remains

obligated to pay the remainder of the $350.00 district court filing
fee in this civil action, through payments from his inmate trust
fund account as authorized by 28 U.S.C. § 1915(b)(2).
Because plaintiff is a prisoner, the court is required to
screen the complaint and to dismiss it or any portion thereof that
is frivolous, fails to state a claim on which relief may be granted,
or seeks monetary relief from a defendant immune from such relief.
28 U.S.C. § 1915A(a) and (b).

Although a complaint filed pro se by

a party proceeding in forma pauperis must be given a liberal
construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), even under
this standard a pro se litigant’s “conclusory allegations without
supporting factual averments are insufficient to state a claim upon

which relief can be based.”
(10th Cir.1991).

Hall v. Bellmon, 935 F.2d 1106, 1110

Plaintiff bears the burden of alleging “enough

facts to state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

See

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008)(stating and
applying Twombly standard for dismissing a complaint as stating no
claim for relief).
“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States and must show that the alleged deprivation was
committed by a person acting under color of state law.”

West v.

Atkins, 487 U.S. 42, 48 (1988).
In

the

present

case,

plaintiff

seeks

damages

for

gross

negligence of Aramark Food Services and Rhonda Ford, the Aramark
Food Service Administrator at HCF.

Plaintiff was injured in

December 2010 when hot oatmeal bubbled into his eye while he was
working in the HCF Central Unit food service department.

Plaintiff

acknowledges he received medical attention and treatment for a
scalded

eye,

but

claims

Ford

was

aware

the

steam

kettle’s

regulator’s gauge needed repair and forced plaintiff to work with
“subpar dangerous equipment.” Plaintiff submitted a personal injury
claim

to

HCF

for

damages

for

$50,000,

but

the

unit

team

investigation of that claim reported that the cooking pots in the
HCF kitchen received constant maintenance, that plaintiff received
immediate care for his injury, that the injury did not result in or
warrant plaintiff’s removal from the kitchen work detail, and that
adequate follow up care was provided.

HCF Policy and Public

Information Officer Schneider returned plaintiff’s institutional
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claim because it exceeded the $500 limit on claims that may be
submitted to the facility or to the Secretary of Corrections.
Plaintiff states he thereafter filed grievances to no avail.
The court first finds plaintiff’s claim for damages under §
1983 against Aramark Corporation is subject to being summarily
dismissed absent allegations of an Aramark corporate policy that was
the “moving force” behind plaintiff's injury.

Aramark cannot be

held vicariously liable for the alleged constitutional torts of its
employees.

See Monell v. Dept. of Social Services of City of New

York, 436 U.S. 658, 691-94 (1978(stating requisites for municipal
liability); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th
Cir.2003)(cataloguing circuit court cases applying requisites in
Monell to § 1983 claims against private entities acting under color
of state law).
Next, plaintiff’s claim for damages under § 1983 against
defendant Ford appears to rest only on her supervisory authority,
thus this claim is subject to being summarily dismissed as well
because plaintiff may not rely on the doctrine of respondeat
superior to hold a defendant liable by virtue of the defendant's
supervisory position.

Rizzo v. Goode, 423 U.S. 362 (1976); Kite v.

Kelley, 546 F.2d 334, 337 (10th Cir. 1976).
of

this

defendant,

the

complaint

must

To withstand dismissal
state

specific

factual

allegations that make a legal claim for relief plausible.

Kay v.

Bemis, 500 F.3d 1214, 1218 (10th Cir.2007).
And even if plaintiff were to surmount these difficulties,
plaintiff’s allegations of negligence in the maintenance of kitchen
equipment would not be sufficient to establish a claim for relief
under § 1983.

A negligent act of an official causing injury to
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life, liberty, or property does not violate the United States
Constitution.

Daniels v. Williams, 474 U.S. 327, 328-31 (1986);

Davidson v. Cannon, 474 U.S. 344 (1986).

See Woodward v. City of

Worland, 977 F.2d 1392, 1399–1400 (10th Cir.1992)(“negligence and
gross negligence do not give rise to section 1983 liability”).
Accordingly, the court directs plaintiff to show cause why the
complaint should not be summarily dismissed as stating no claim upon
which relief can be granted under § 1983 against either named
defendant.

The failure to file a timely response may result in the

complaint being dismissed for the reasons stated herein, and without
further prior notice.
Plaintiff’s renewed motion for appointment of counsel is denied
without prejudice.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to
proceed in forma pauperis (Doc. 3) is granted, and that payment of
the remainder of the $350.00 district court filing fee proceed as
authorized by 28 U.S.C. § 1915(b)(2).
IT IS FURTHER ORDERED that plaintiff’s renewed motion for
appointment of counsel (Doc. 8) is denied without prejudice.
IT IS FURTHER ORDERED that plaintiff is granted twenty (20)
days to show cause why the complaint should not be summarily
dismissed as stating no claim for relief against defendants.
IT IS SO ORDERED.
DATED:

This 10th day of January 2012 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

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