Bailey v. Aramark Corporation et al
Filing
41
MEMORANDUM OPINION & ORDER: IT IS ORDERED that: Plaintiff David Bailey's motion to file an amended complaint 35 is DENIED; 2. Defendant Aramark Correctional Services, LLC's motion to Dismiss 19 is GRANTED & the claims against it are DI SMISSED; 3. Defendant Randy Ingram's motion to dismiss 32 is GRANTED, & the claim against him are DISMISSED; 4. The motion to dismiss the complaint filed by Stephanie Thompson and Jennifer Whelan 25 is GRANTED, & the claims against them are DISMISSED. Signed by Judge Joseph M. Hood on 9/1/2017.(KM)cc: COR, Plaintiff via U.S. mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DAVID WAYNE BAILEY,
Plaintiff,
V.
ARAMARK CORPORATION, et al.,
Defendant.
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Civil Action No. 16-343-JMH
MEMORANDUM OPINION
AND ORDER
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This matter is before the Court upon separate motions to
dismiss the complaint filed by defendants Aramark Correctional
Services, LLC (“Aramark”) [R. 19]; Director of Food Services
Randy Ingram [R. 32]; and nurses Stephanie Thompson and Jennifer
Whelan [R. 25].1
These matters have been fully briefed and are
ripe for decision.
I
Inmate
Green
River
David
Wayne
Correctional
Bailey
is
Complex
currently
in
Central
confined
City,
at
the
Kentucky.
Bailey filed a pro se civil rights complaint pursuant to 42
1
The remaining defendants - including Acting Warden Brad Adams;
Commissioner Rodney Ballard; Nurse Brenda Beehler; Medical
Director Denise Burkett; Deputy Warden Mendalyn Cochran;
Ombudsman John Dunn; and Christy Jolly - have collectively filed
an answer to the complaint [R. 26] in lieu of a dispositive
motion.
The Court limits its discussion to addressing the
allegations and claims against the moving defendants.
1
U.S.C.
§
1983
asserting
constitutional
and
state
law
claims
based upon his allegation that the defendants, prison officials
at the Northpoint Training Center (“NTC”), failed in 2016 to
effectuate a medical order to provide him with a special diet to
address food allergies. [R. 1]
Bailey alleges that on May 6, 2016, medical staff at NTC
advised him that blood tests indicated that he would or might
have a “chronic and acute reaction to beef and milk.”
17th,
Bailey
filed
a
grievance
asking
that
the
On May
kitchen
be
informed of his special dietary needs.
Although officials responded that they had done so, Bailey
complained that “no menu [was] specifically designed for the
plaintiff.”
In
late
dietician’s
written
July,
diet
Bailey’s food allergies.
NTC
plan
was
staff
responded
appropriate
to
that
a
address
[R. 1-1 at 14] In response to an open
records request in late August, NTC staff stated that while
“[n]o menu exists which is specifically designed for you,” that
“a generic menu is issued by the state dietician in accordance
with Aramark guidelines to address the needs of individuals with
food allergies.”
[R. 1-1 at 2]
Notwithstanding NTC’s response,
Aramark asserts that it did, in fact, create a specialized menu
for Bailey after he filed his initial grievance.
2
See [R. 32-13]
Bailey
contends
that
the
defendants
were
obligated
to
“identif[y] Casein Proteins or Wheys, or both as allergens”; to
advise
kitchen
staff
that
kneaded
breads
and
bakery
foods
contain allergens; and to provide him with “fortified calcium
fruit drink.”
[R. 1 at 3-4]
NTC officials stated that Bailey
was receiving the calcium fortified beverage by early August.
Bailey then filed grievances asserting that he had only received
it on a few occasions; that he believed that it was not actually
calcium fortified; and/or that it had “expired” because it was
prepared three or more days before it was served to him.
[R. 1-
1 at 9, 15-16]
The balance of Bailey’s allegations complain that officials
responding
to
the
inmate
grievances
he
filed
over
the
several months did not adequately address his concerns.
next
Bailey
alleges that he suffers from cysts as an allergic reaction to
foods he consumed that contained meat or dairy products, which
is “embarrassing”.
[R. 1 at 5-7]
Bailey contends that defendants Aramark and Randy Ingram
failed to create a menu specifically tailored to his needs,
despite having done so for other inmates, in violation of his
right to equal protection under the law as a “class of one”
under the Fifth and Fourteenth Amendments.
[R. 1 at 1, 7]
Bailey further claims that the failure of Ingram and Thompson to
3
create
a
special
menu
for
him
constituted
deliberate
indifference to his serious medical needs in violation of the
Eighth Amendment, and that Aramark violated the Eighth Amendment
by “creat[ing] a policy or custom of using a generic menu that
allowed for violations...”.
that
defendants
Amendment
Bailey
when
[R. 1 at 7, 8]
Thompson
they
contends
and
denied
that
the
Whelan
his
inmate
defendants’
Plaintiff asserts
violated
the
grievances.
conduct
Eighth
Finally,
constitutes
the
tort of “outrage” under Kentucky law.2 [R. 1 at 8]
II
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
tests the sufficiency of the plaintiff’s complaint.
Gardner v.
Quicken Loans, Inc., 567 F. App’x 362, 364 (6th Cir. 2014).
When
addressing
complaint
accepts
in
as
D’Ambrosio
a
the
true
v.
motion
light
all
Marino,
to
most
dismiss,
favorable
well-pleaded
747
F.3d
the
to
facts
378,
383
Court
in
the
plaintiff
the
views
and
the
(6th
complaint.
Cir.
2014).
Because the plaintiff here is proceeding without the benefit of
an attorney, the Court reads his complaint to include all fairly
2
Bailey filed a first and second amended complaint regarding the
conditions of his confinement at GRCC. [R. 6, 7]
The Court
severed those claims from this action, but ordered the existing
defendants to be served with process to respond to Bailey’s
allegations regarding his treatment at NTC. [R. 9]
4
and reasonably inferred claims.
Davis v. Prison Health Servs.,
679 F.3d 433, 437-38 (6th Cir. 2012).
A
complaint
must
contain
allegations,
either
expressly
stated or necessarily inferred, with respect to every material
element necessary to sustain a recovery under some viable legal
theory.
F.3d
Philadelphia Indem. Ins. Co. v. Youth Alive, Inc., 732
645,
649
(6th
Cir.
2013).
But
the
complaint
must
be
dismissed if it undoubtedly fails to allege facts sufficient to
state a facially-plausible claim.
Republic Bank & Trust Co. v.
Bear Stearns & Co., Inc., 683 F.3d 239, 247 (6th Cir. 2012).
A
complaint may be dismissed for failure to state a claim if “‘it
fails to give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.’”
Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007).
The sufficiency of the complaint is generally tested with
reference only to the face of the complaint itself.
Burns v.
United States, 542 F. App’x 461, 466 (6tgh Cir. 2013).
This
includes documents incorporated into the complaint by reference.
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007).
The Court may also consider “other materials that are
integral to the complaint, are public records, or are otherwise
appropriate for the taking of judicial notice.”
Ashland, Inc.
v. Oppenheimer & Co., 648 F.3d 461, 467 (6th Cir. 2011).
5
If a
plaintiff
refers
to
a
document
in
her
complaint
and
it
is
central to her claim, the document will be considered part of
the pleadings even if the plaintiff does not attach it to her
complaint if the defendant attaches it to the motion to dismiss.
Campbell v. Nationstar Mtg., 611 F. App’x 288 (6th Cir. 2015)
(citing Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997)).
See also Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681
(6th Cir. 2011).
A
Aramark first notes that it is not responsible under 42
U.S.C. § 1983 for Ingram’s actions merely because it employs
him.
[R. 19-1 at 5]
That much is true.
Ashcroft v. Iqbal, 556
U.S. 662, 677 (2009) (“In a § 1983 suit or a Bivens action—where
masters do not answer for the torts of their servants—the term
‘supervisory liability’ is a misnomer.”).
Aramark next states that it cannot be liable at all because
Bailey’s
complaint
does
“not
include
any
allegation
that
an
Aramark employee, including Ingram, acted or purposefully failed
to act pursuant to some company policy or custom that caused
Plaintiff harm.”
clearly so.
[R. 19-1 at 6]
[R. 1 at 8, ¶47]
It does, actually, and quite
Whether Bailey can prove that
fact is another matter, but he certainly pled it.
6
Bailey
purports
to
assert
his
equal
protection
claim
against Aramark and its employee Ingram under the Fifth and
Fourteenth Amendments.
[R. 1 at 7, ¶42] Aramark notes that the
Fifth Amendment applies to those acting under color of federal,
not state, law.
fundamental
[R. 19-1 at 6-7]
defect
in
Bailey’s
There is another, more
claim:
the
Fifth
Amendment
contains no equal protection component at all.
Bailey’s
equal
protection
claim
arises
solely
under
the
Fourteenth Amendment, which applies to those acting under color
of state law.
Although Aramark and Ingram are a non-public
business and citizen, respectively, rather than a public entity
or
official,
Aramark
provides
food
services
at
the
prison
pursuant to a contract with KDOC, and hence both defendants are
state
actors
for
purposes
conduct under the contract.
of
§
1983
with
respect
to
their
Street v. Corr. Corp. of Am., 102
F.3d 810, 817-18 (6th Cir. 1996).
Nonetheless,
Bailey
fails
to
claim against either defendant.
state
an
equal
protection
In order to bring a successful
claim under a “class of one” theory, the plaintiff must allege
that “she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment.”
Vill. of Willowbrook v. Olech, 528
U.S. 562, 564 (2000) (per curiam).
7
Bailey alleges that inmate
Jensen was given an individualized diet plan while he was not,
but alleges no facts (as opposed to mere conclusions) both that
Jensen was similarly-situated to him in all material respects,
and that the difference in treatment was without a rational
basis.
Bailey has therefore failed to adequately plead an equal
protection claim against Aramark and its employee Ingram, and
these claims must therefore be dismissed.
Clark v. Johnson, 413
F. App’x 804, 817-18 (6th Cir. 2011).
B
Bailey’s
second
claim
asserts
that
Ingram
and
Aramark
displayed deliberate indifference to his serious medical needs
because they failed to create a customized menu for him alone
that addressed his dietary restrictions. To state a claim for
violation of the Eighth Amendment, an inmate must demonstrate
two things: the deprivation of a sufficiently serious medical
need (the objective component) and that the official acted with
deliberate indifference to that need (the subjective component).
Farmer v. Brennan, 511 U.S. 825, 834 (1970); Phillips v. Roane
Co., Tenn., 534 F. 3d 531, 539-40 (6th Cir. 2008).
An
inmate’s
food
allergies
can
present
a
sufficiently
serious risk to the inmate’s health in a variety of ways, such
as where prison officials give the inmate unapproved food which
causes a serious allergic reaction, or where only approved foods
8
are given but they fail to provide adequate nutrition.
Balcar
v. Smith, No. 3: 16-CV-P428-DJH, 2017 WL 380931, at *3 (W.D. Ky.
Jan. 26, 2017).
“generic”
menu
In this case, Bailey makes no claim that the
provided
to
nutritionally inadequate.
inmates
with
food
allergies
is
Indeed, the specialized diet prepared
by Aramark’s dietician provides for numerous substitutes for the
foods that would or might trigger an allergic reaction.
[R. 32-
13]
Instead, Bailey alleges that consuming kneaded breads and
bakery foods can cause him to get a rash or for cysts to appear.
[R. 1 at 4]
First, where these items contain beef or dairy
products - the only food products to which Bailey is allergic
according
to
excluded
from
provided.
objective
medical
Bailey’s
[R. 32-13]
diet
evidence
and
-
they
non-allergenic
are
to
be
substitutes
The defendants have thus acted to avoid
the physical symptoms about which Bailey is concerned.
The
facts alleged by Bailey therefore fail to indicate a subjective
state
of
mind
tantamount
to
deliberate
indifference
to
his
serious medical needs.
And even if Bailey might periodically consume a prohibited
item,
courts
have
held
that
symptoms
similar
to
those
he
experiences are too de minimis to constitute a “sufficiently
serious” medical need.
Cf.
Sweeting v. Miller, No. 7: 14CV187,
9
2015 WL 4773276, at *3 (W.D. Va. Aug. 12, 2015) (swollen tongue
resulting from eating food to which plaintiff was allergic is
insufficient
to
state
Eighth
Amendment
claim);
Jackson
v.
Gordon, No. 3:03–cv–1725, 2014 WL 690643, at *11 (M.D. Pa. Feb.
24,
2014);
Kemp
v.
Drago,
No.
1:12–1481–JFA–SVH,
2013
WL
4874972, at *9 (D.S.C. Sept. 11, 2013).
Bailey’s allegations
are
either
therefore
insufficient
to
set
forth
the
required
subjective or objective components of an Eighth Amendment claim.
C
The
third
claim
asserted
by
Bailey
against
Aramark
and
Ingram is for the intentional infliction of emotional distress
(“IIED”), known as the tort of outrage under Kentucky law.
As a
threshold matter, IIED is a “gap-filler” claim which is only
available “where an actor’s conduct amounts to the commission of
one
of
the
traditional
such
App.
1993).
Where,
as
distress
or
Rigazzio v. Archdiocese of Louisville, 853 S.W.2d
Ct.
emotional
battery,
allowed.”
(Ky.
for
assault,
for
298–99
recovery
as
negligence
295,
which
torts
here,
is
“[t]he
constitutional tort of deliberate indifference and the tort of
negligence are available to the plaintiffs in order to recover
for [] emotional distress,” Shouse v. Daviess County, No. 4:06CV–144–M, 2009 WL 424978, at *9 (W.D. Ky. Feb.19, 2009), an IIED
claim is not available and must be dismissed.
10
See Carter v.
Porter, No. 08–246–JBC, 2008 WL 4911142, at *5 (E.D. Ky. Nov.12,
2008)).
Of course, “[t]he tort of outrage is still a permissible
cause of action, despite the availability of more traditional
torts,
extreme
as
long
as
emotional
the
defendants
distress.”
solely
Green
v.
intended
Floyd
Co.,
to
cause
Ky.,
803
F.Supp.2d 652, 655 (E .D. Ky. 2011) (citing Brewer v. Hillard,
15 S .W.3d 1, 7–8 (Ky. App. 1999)).
merely
alleges
that
emotional
But where the plaintiff
distress
resulted
from
the
defendants’ conduct, not that their sole purpose in engaging in
that conduct was to inflict that distress, the allegations fall
outside this narrow exception and fail to state a viable IIED
claim.
Vidal v. Lexington-Fayette Urban Co. Gov’t, No. 5:13-CV-
117-DCR, 2014 WL 4418113, at *9 (E.D. Ky. Sept. 8, 2014).
In addition, to state an IIED claim, the plaintiff must
allege
facts
sufficient
to
conduct
was
intentional
or
show
that:
reckless;
(1)
(2)
the
the
defendant’s
conduct
was
outrageous and intolerable, in that it offends the generally
accepted standards of decency and morality; (3) there was causal
connection
between
the
wrongdoer’s
conduct
and
the
emotional
distress; and (4) the emotional distress was severe. Stringer v.
Wal-Mart Stores, Inc., 151 S.W.3d 781, 788 (Ky. 2004).
11
Bailey’s claim fails to satisfy at least the second and
fourth elements.
Taking Bailey’s allegations at face value, the
decision by NTC food service staff to rely upon a generic set of
guidelines to address food allergies instead of formulating an
individualized
diet
unique
to
him,
even
if
it
could
be
considered negligent, falls well short of constituting the kind
of
egregious
and
intentional
misconduct
that
would
offend
general standards of basic human decency and morality.
Childers
v.
Bailey’s
Geile,
367
S.W.3d
576,
582
(Ky.
2012).
And
allegation that he suffers distress from not knowing whether the
food he is consuming contains allergens [R. 1 at 7] does not
constitute the kind of “serious” or “severe” emotional injury
required to state an IIED claim.
1, 17-18 (Ky. 2012).
Osborne v. Keeney, 399 S.W.3d
This claim must therefore be dismissed as
well.
D
In response to Ingram’s motion to dismiss, Bailey has filed
a two-sentence motion requesting permission to file yet another
amended
complaint
defendant.”
to
[R. 35]
“correct[]
the
defects
raised
by
the
But contrary to Bailey’s statement in
his
motion, his response to Ingram’s motion to dismiss does not
explain what “defects” he seeks to correct or how the amended
complaint he seeks to file will address them.
12
And while Federal
Rule of Civil Procedure 15(a)(2) instructs Courts to “freely
give leave [to amend] when justice so requires,” that right is
“not absolute or automatic.”
LLC,
539
F.3d
545,
551
Tucker v. Middleburg-Legacy Place,
(6th
Cir.
2008).
A
party
requesting
permission to file an amended complaint must attach a copy of
the proposed amended complaint to his motion so that the Court
can properly evaluate whether to permit it.
Kuyat v. BioMimetic
Therapeutics, Inc., 747 F.3d 435, 414 (6th Cir. 2014).
Bailey’s
conclusory motion, filed in response to a dispositive motion and
unaccompanied by a tendered amended complaint, will be denied.
E
Bailey contends in his complaint that nurses Thompson and
Whelan violated the Eighth Amendment when they denied his inmate
grievances requesting that an individualized menu be created for
him.
[R.
defendants
against
1
7-8]
correctly
them
Amendment.
at
must
In
note
be
their
that
dismissed
any
as
motion
to
official
barred
dismiss,
capacity
by
the
these
claims
Eleventh
An “official capacity” suit against a state employee
or official is actually a suit against the state itself.
The
Eleventh Amendment specifically prohibits federal courts from
exercising subject matter jurisdiction over a suit for money
damages brought directly against the state, its agencies, and
state officials sued in their official capacities.
13
Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
687-88 (1993); Cady v. Arenac Co., 574 F.3d 334, 342 (6th Cir.
2009).
In addition, states, state agencies, and state officials
sued in their official capacities for monetary damages are not
considered “persons” within the meaning of 42 U.S.C. § 1983.
Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994).
The
Court must therefore dismiss all of the official capacity claims
with prejudice.
Thompson and Whelan further note that each of them only
responded
to
Bailey’s
inmate
grievances
requesting
an
individualized menu, but were not in any other way involved in
the substance of the underlying decisions regarding that menu.
[R. 25-1 at 3-4]
Eighth
Amendment
Bailey does not allege otherwise, and his
claims
therefore be dismissed.
against
Cf.
Thompson
and
Whelan
must
Alder v. Corr. Medical Services,
73 F. App’x 839, 841 (6th Cir. 2003) (“The mere denial of a
prisoner’s
grievance
states
no
claim
of
constitutional
dimension.”); Martin v. Harvey, 14 F. App’x 307, 309-10 (6th
Cir. 2001) (“The denial of the grievance is not the same as the
denial
of
a
request
to
receive
medical
care.”);
Simpson
v.
Overton, 79 F. App’x 117, 120 (6th Cir. 2003) (“[T]he denial of
an
appeal
cannot
in
itself
constitute
sufficient
personal
involvement to state a claim for a constitutional violation”).
14
Bailey’s Eighth Amendment claim is also subject to dismissal for
the same reasons stated in section II(B) above.
Bailey also asserts his IIED claim against Thompson and
Whelan,
but
that
claim
must
be
dismissed
discussed in section II(C) above.
for
the
reasons
Because other traditional
torts cover the subject matter of Bailey’s claim, the “gapfiller” tort of IIED is not available. Shouse, 2009 WL 424978,
at *9.
of
The actions alleged by Bailey do not constitute the kind
indecent
behavior,
“severe”
and
and
immoral
Bailey’s
emotional
misconduct
“distress”
injury
required
to
constitute
is
not
the
to
state
outrageous
“serious”
an
IIED
or
claim.
Childers, 367 S.W.3d at 582; Osborne, 399 S.W.3d at 17-18.
This
claim will therefore be dismissed.
Accordingly, IT IS ORDERED that:
1.
Plaintiff
David
Bailey’s
motion
to
file
an
amended
complaint [R. 35] is DENIED.
2.
Defendant Aramark Correctional Services, LLC’s motion
to dismiss the complaint [R. 19] is GRANTED, and the claims
against it are DISMISSED.
3.
Defendant
Randy
Ingram’s
motion
to
dismiss
the
complaint [R. 32] is GRANTED, and the claims against him are
DISMISSED.
15
4.
The
motion
to
dismiss
the
complaint
filed
by
defendants Stephanie Thompson and Jennifer Whelan [R. 25] is
GRANTED, and the claims against them are DISMISSED.
This the 1st day of September, 2017.
16
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