Blake v. Aramark Corporation et al

Filing 17

ORDER ENTERED: Plaintiff's motions 11 , 13 & 16 are denied without prejudice. The complaint is dismissed as stating no claim for relief against any defendant. Signed by Senior District Judge Sam A. Crow on 2/1/2012. (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 a Kansas
correctional facility pursuant to an Interstate Corrections Compact.
He proceeds pro se and in forma pauperis in this action.
By

an

order

dated

January

10,

2012,

the

court

directed

plaintiff to show cause why the complaint should not be summarily
dismissed

as

defendants.

stating

no

claim

for

relief

against

the

named

28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C. § 1915A(b).

In response, plaintiff submitted motions titled as “Motion for
Denial of Defense Motion for Summary Judgment” and “Motion for
Summary Judgment,” each with a supporting memorandum.1
1

The court

Plaintiff also filed a third motion for appointment of
counsel. In support of this renewed request, plaintiff cites only
the court’s finding that plaintiff was indigent and unable to pay
the district court filing fee.
Plaintiff has no right to the
assistance of counsel in this civil action, even if granted in forma
pauperis status.
Durre v. Dempsey, 869 F.2d 543, 647 (10th
Cir.1989).
Having reviewed petitioner's claims, his ability to
present said claims, and the complexity of the legal issues
involved, the court continues to find the appointment of counsel in
this matter is not warranted. See Long v. Shillinger, 927 F.2d 525,
526-27 (10th Cir.1991)(factors to be considered in deciding motion
for appointment of counsel).

has not ordered service of process on any defendant in this matter,
thus plaintiff’s motions as titled are clearly premature and denied
without prejudice.
Even

if

these

pro

pleadings

are

liberally

construed

as

encompassing plaintiff’s response to the show cause order, the court
remains convinced the complaint should be summarily dismissed.
Plaintiff cites being injured during kitchen duty when hot
oatmeal bubbled into his eye, and claims this accident resulted from
a faulty gauge that Aramark was continually servicing without
properly fixing the problem.

Plaintiff attempts to expand his

allegations to broadly contend that Aramark has a cost cutting
practice of not fixing faulty equipment, and that Aramark was
responsible for defendant Ford who was the food service officer at
the correctional facility.

These expanded allegations of “gross

negligence” and supervisory liability, however, are insufficient to
state a plausible constitutional claim against either defendant.
Plaintiff also now alleges defendant Ford refused to allow
plaintiff to be reassigned to kitchen duty after medical treatment
had resolved plaintiff’s eye injury, and contends this decision
wrongfully denied him a higher paying work assignment.

Even if

plaintiff’s exhaustion of administrative remedies could be assumed
on this new allegation, no cognizable claim for relief is presented
against defendant Ford because the United States Constitution does
not create a property or liberty interest in prison employment, see
Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir.1986), and no such
interest

arises

from

Kansas

law,
2

see

Turner

v.

Maschner,

11

Kan.App.2d 134, rev. denied (1986).

Moreover, the deprivation

plaintiff alleges to have suffered is insufficient to plausibly
entail "the type of atypical, significant deprivation in which a
State might conceivably create a liberty interest" for purposes of
establishing a liberty interest protected by the Due Process Clause.
See Sandin v. Conner, 515 U.S. 472, 484-86 (1995).
Accordingly, for the reasons stated herein and in the show
cause order entered on January 10, 2012, the court concludes the
complaint should be dismissed as stating no claim upon which relief
can be granted under § 1983 against either defendant.
IT IS THEREFORE ORDERED that plaintiff’s motions (Docs. 11, 13,
and 16) are denied without prejudice.
IT IS FURTHER ORDERED that the complaint is dismissed as
stating no claim for relief against any defendant.
IT IS SO ORDERED.
DATED:

This 1st day of February 2012 at Topeka, Kansas.

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

3