Bailey v. Aramark Corporation et al
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,
ARAMARK CORPORATION, et al.,
Civil Action No. 16-343-JMH
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.
Bailey filed a pro se civil rights complaint pursuant to 42
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
The Court limits its discussion to addressing the
allegations and claims against the moving defendants.
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.”
informed of his special dietary needs.
Although officials responded that they had done so, Bailey
complained that “no menu [was] specifically designed for the
Bailey’s food allergies.
[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
[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.
See [R. 32-13]
“identif[y] Casein Proteins or Wheys, or both as allergens”; to
contain allergens; and to provide him with “fortified calcium
[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.
1 at 9, 15-16]
The balance of Bailey’s allegations complain that officials
several months did not adequately address his concerns.
alleges that he suffers from cysts as an allergic reaction to
foods he consumed that contained meat or dairy products, which
[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
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...”.
[R. 1 at 7, 8]
tort of “outrage” under Kentucky law.2 [R. 1 at 8]
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
tests the sufficiency of the plaintiff’s complaint.
Quicken Loans, Inc., 567 F. App’x 362, 364 (6th Cir. 2014).
Because the plaintiff here is proceeding without the benefit of
an attorney, the Court reads his complaint to include all fairly
Bailey filed a first and second amended complaint regarding the
conditions of his confinement at GRCC. [R. 6, 7]
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]
and reasonably inferred claims.
Davis v. Prison Health Servs.,
679 F.3d 433, 437-38 (6th Cir. 2012).
stated or necessarily inferred, with respect to every material
element necessary to sustain a recovery under some viable legal
Philadelphia Indem. Ins. Co. v. Youth Alive, Inc., 732
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).
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.
United States, 542 F. App’x 461, 466 (6tgh Cir. 2013).
includes documents incorporated into the complaint by reference.
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
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.”
v. Oppenheimer & Co., 648 F.3d 461, 467 (6th Cir. 2011).
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).
Aramark first notes that it is not responsible under 42
U.S.C. § 1983 for Ingram’s actions merely because it employs
[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
Aramark employee, including Ingram, acted or purposefully failed
to act pursuant to some company policy or custom that caused
[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.
against Aramark and its employee Ingram under the Fifth and
[R. 1 at 7, ¶42] Aramark notes that the
Fifth Amendment applies to those acting under color of federal,
not state, law.
[R. 19-1 at 6-7]
There is another, more
contains no equal protection component at all.
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
pursuant to a contract with KDOC, and hence both defendants are
conduct under the contract.
Street v. Corr. Corp. of Am., 102
F.3d 810, 817-18 (6th Cir. 1996).
claim against either defendant.
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).
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
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).
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).
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
are given but they fail to provide adequate nutrition.
v. Smith, No. 3: 16-CV-P428-DJH, 2017 WL 380931, at *3 (W.D. Ky.
Jan. 26, 2017).
In this case, Bailey makes no claim that the
Indeed, the specialized diet prepared
by Aramark’s dietician provides for numerous substitutes for the
foods that would or might trigger an allergic reaction.
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
The defendants have thus acted to avoid
the physical symptoms about which Bailey is concerned.
facts alleged by Bailey therefore fail to indicate a subjective
serious medical needs.
And even if Bailey might periodically consume a prohibited
experiences are too de minimis to constitute a “sufficiently
serious” medical need.
Sweeting v. Miller, No. 7: 14CV187,
2015 WL 4773276, at *3 (W.D. Va. Aug. 12, 2015) (swollen tongue
resulting from eating food to which plaintiff was allergic is
Gordon, No. 3:03–cv–1725, 2014 WL 690643, at *11 (M.D. Pa. Feb.
4874972, at *9 (D.S.C. Sept. 11, 2013).
subjective or objective components of an Eighth Amendment claim.
Ingram is for the intentional infliction of emotional distress
(“IIED”), known as the tort of outrage under Kentucky law.
threshold matter, IIED is a “gap-filler” claim which is only
available “where an actor’s conduct amounts to the commission of
Rigazzio v. Archdiocese of Louisville, 853 S.W.2d
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.
See Carter v.
Porter, No. 08–246–JBC, 2008 WL 4911142, at *5 (E.D. Ky. Nov.12,
Of course, “[t]he tort of outrage is still a permissible
cause of action, despite the availability of more traditional
F.Supp.2d 652, 655 (E .D. Ky. 2011) (citing Brewer v. Hillard,
15 S .W.3d 1, 7–8 (Ky. App. 1999)).
But where the plaintiff
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
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
outrageous and intolerable, in that it offends the generally
accepted standards of decency and morality; (3) there was causal
distress; and (4) the emotional distress was severe. Stringer v.
Wal-Mart Stores, Inc., 151 S.W.3d 781, 788 (Ky. 2004).
Bailey’s claim fails to satisfy at least the second and
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
considered negligent, falls well short of constituting the kind
general standards of basic human decency and morality.
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
In response to Ingram’s motion to dismiss, Bailey has filed
a two-sentence motion requesting permission to file yet another
But contrary to Bailey’s statement in
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.
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.”
Tucker v. Middleburg-Legacy Place,
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).
conclusory motion, filed in response to a dispositive motion and
unaccompanied by a tendered amended complaint, will be denied.
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
An “official capacity” suit against a state employee
or official is actually a suit against the state itself.
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.
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.
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).
Court must therefore dismiss all of the official capacity claims
Thompson and Whelan further note that each of them only
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]
Bailey does not allege otherwise, and his
therefore be dismissed.
Alder v. Corr. Medical Services,
73 F. App’x 839, 841 (6th Cir. 2003) (“The mere denial of a
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
Overton, 79 F. App’x 117, 120 (6th Cir. 2003) (“[T]he denial of
involvement to state a claim for a constitutional violation”).
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
discussed in section II(C) above.
Because other traditional
torts cover the subject matter of Bailey’s claim, the “gapfiller” tort of IIED is not available. Shouse, 2009 WL 424978,
The actions alleged by Bailey do not constitute the kind
Childers, 367 S.W.3d at 582; Osborne, 399 S.W.3d at 17-18.
claim will therefore be dismissed.
Accordingly, IT IS ORDERED that:
complaint [R. 35] is DENIED.
Defendant Aramark Correctional Services, LLC’s motion
to dismiss the complaint [R. 19] is GRANTED, and the claims
against it are DISMISSED.
complaint [R. 32] is GRANTED, and the claims against him are
defendants Stephanie Thompson and Jennifer Whelan [R. 25] is
GRANTED, and the claims against them are DISMISSED.
This the 1st day of September, 2017.
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