Jones v. Airmark Food Service et al
MEMORANDUM OPINION & ORDER: (1) Jones's Complaint DE# 1 9 is DISMISSED WITHOUT PREJUDICE; (2) The Court will enter an appropriate judgment; (3) This matter is STRICKEN from the active docket. Signed by Judge Henry R. Wilhoit, Jr on 11/15/11.(KSS)cc: Jones (via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
Civil Action No. II-III-HRW
AIRMARK. FOOD SERVICES, et aI., )
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Plaintiff Allen Jones is a prisoner confined
Correctional Complex in West Liberty, Kentucky.
the Eastern Kentucky
Jones, proceeding without
counsel, has filed an original and amended complaint asserting civil rights claims
pursuant to 42 U.S.C. § 1983. [R. 1,9] The Court has granted his motion to pay the
filing fee in installments pursuant to 28 U.S.C. § 1915 by prior order. [R.8]
The Court conducts a preliminary review of complaints filed against
government officials. 28 U.S.C. § 1915A; McGore v. Wrigglesworth, 114 F.3d 601,
607-08 (6th Cir. 1997). Because the plaintiff is not represented by an attorney, the
complaint is reviewed under a more lenient standard. Burton v. Jones, 321 F.3d 569,
573 (6th Cir. 2003); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999). At this
stage the Court accepts the plaintiff s factual allegations as true and his legal claims
are liberally construed in his favor. Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir.
2001). But the Court must dismiss a case at any time if it determines the action (a)
is frivolous or malicious, or (b) fails to state a claim upon which reliefcan be granted.
28 U.S.C. § 1915(e)(2).
In his original complaint [R. 1], Jones named as defendants "Airmark-Food
Service; Larry D. Chaler; Page Macquire, Al Parks, and Steven L. Bershure."} The
complaint contained only one substantive paragraph. In it, Jones appeared to allege
that his cell did not meet federal guidelines requiring 63 square feet of living space;
Aramark bribed state officials to avoid paying inmates the federal minimum wage;
and that the food was poor there, causing him to lose weight. [R. 1 at 4]
Because these allegations were vague; did not identify the persons allegedly
responsible for these conditions; did not concretely allege resulting physical injury;
or indicate what constitutional rights were violated, on October 17,2011, the Court
entered an Order directing Jones to file a new complaint on the Court-supplied forms
to clarify the factual and legal nature of his claims. [R. 8]
Jones filed his amended complaint on October 25, 2011. [R. 9] In it, Aramark
and McGuire are no longer named as defendants, but Jones has named Dr. Hiland at
The Court assumes Jones intended to name as defendants Aramark Correctional Services,
LLC, a division of Aramark Corporation; Larry Chandler, a member ofthe Kentucky Parole Board;
Page Mcguire, former Deputy Warden of Operations at the Kentucky State Reformatory; former
Commissioner of the Kentucky Department of Corrections Al Parks; and Kentucky Governor
the Kentucky State Penitentiary as a new defendant. In addition, Jones recast the
factual basis for his claims. The entirety of his allegations are that:
When I came in coustted in woring county Reggnel Gail, they put me on
some medaction. When I fial of the bunk at that gail they denied me
medacall treatment where I fricker my airm. When I went to rettery they
shiped me to Lagrans Al parks and the rest made a dill witch Airmark
and they broght toxix pant in and pantted K.S.R. when we filed a law
suite the started fedding us stuff to make use sicx then they shiped use
to outher pirson and they had ther buddy to curtoy this. I filed a law
suite a Eddy Vill Kentuck State Prission, there they feed me something
that gave me headackes and started me tingling from my head to my
feet, I filed papper work there so they shiped me back to E.K.C.C. I'm
still tingling from my back to my feet. They feed me somthing that is
making big sores come on my face. So I'm asking you for help in this
matter to stop these people frome doing this to me, or fotner prinsoners
in the fucher by making in exsampel out of these people.
[R. 9 at 2-3] The Court construes this language as asserting three claims.
First, that when Jones was incarcerated at the Warren County Regional Jail, he
fell from his bunk, but the jail did not provide adequate medical treatment. Apart
from the fact that none ofthe named defendants appear to have been employed by the
Warren County Regional Jail, Jones indicates that this injury occurred on or about
October 2,2002. [R. 9 at 3] Federal law requires that a civil rights claim arising out
of conduct occurring in Kentucky must be filed within one year after the events
complained ofunder KRS 413 .140(1)(a). Fox v. DeSoto, 489 F3d 227, 232-33 (6th
Cir. 2007). Because the complaint indicates that the injury Jones suffered at the
Warren County Regional Jail occurred nearly a decade ago, this claim is barred by the
statute of limitations, and must be dismissed.
Second, the complaint appears to allege that Aramark and then-warden Al
Parks agreed to paint the walls ofthe Kentucky State Reformatory in LaGrange with
toxic paint, and that either the paint or the food at the prison made Jones sick.
However, Jones indicates that this occurred on or about June 2005. [R. 9 at 4]
Because the events forming the basis ofthis claim transpired approximately six years
ago, any civil rights claim arising from them is likewise barred by the applicable one
year statute oflimitations. Baker v. Mukasey, 287 F. App 'x 422,424 (6th Cir. 2008).
Third, Jones appears to allege that the food he was served at the Kentucky State
Penitentiary in Eddyville, Kentucky gave him headaches and caused "tingling" from
his head to his feet. However, of the named defendants, only Dr. Hiland appears to
have worked at KSP in Eddyville. And while Dr. Hiland was doubtless charged with
providing medical care to the inmates at that facility, there is no suggestion in the
complaint that he exercised control over what the inmates were fed, or that any ofthe
other named defendants was personally involved in that decision. Absent such an
allegation, the complaint fails to state a claim against these defendants under Ashcroft
v. Iqbal, 129 S.Ct. 1937, 1948-49 (2009) ("Because vicarious liability is inapplicable
to Bivens and § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has violated the
Constitution."). Even the liberal construction afforded claims set forth by litigants
proceeding without counsel does not require a court to conjure up allegations or
claims the plaintiff has not plead. Superior Kitchen Designs, Inc. v. Valspar Indus.
(US.A.), Inc., 263 F.Supp.2d 140, 148 (D.Mass. 2003) ("while the allegations ofthe
complaint are construed favorably to the plaintiff, the court will not read causes of
action into the complaint which are not alleged."); Nali v. Ekman, 355 F. App'x 909,
913 (6th Cir. 2009) (Sutton, J., dissenting) ("when a pro se litigant asks us to identify
any potentially winning arguments in his lower court pleadings, he is asking us to
create, not correct, potential disparities in the legal system.")2
Because the plaintiff's amended complaint [R. 9] asserts claims which are
barred by the statute of limitations, or which otherwise fail to allege facts with
sufficient particularity to satisfy the requirements ofFederal Rule ofCivil Procedure
8, the Court will dismiss the complaint, without prejudice.
Ifthe plaintiff wishes to correct the defects identified in this order, he may file
a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure
59(e) within 28 days after entry ofthis order. lfhe files such a motion, he should file
with it an amended complaint which clearly identifies the actions taken by each
named defendant that the plaintiff contends violated his constitutional rights, setting
2 There is also considerable doubt whether plaintiffs allegation that the food caused him
"headaches" and "tingling" is sufficient to satisfy the requirement that the plaintiff allege some
concrete physical injury arising from the alleged deprivation of constitutional rights, 28 U.S.C.
§ 1997e(a); Jarriett v. Wilson, 162 F. App'x 394, 401 (6th Cir. 2005), but the Court need not
conclusively decide the issue here.
forth such additional names, dates, places, and events as are necessary to explain the
basis for his claims.
Accordingly, IT IS ORDERED that:
Jones's Complaint [R. 1,9] is DISMISSED WITHOUT PREJUDICE.
The Court will enter an appropriate judgment.
This matter is STRICKEN from the active docket.
This 15 th day of November, 2011.
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