Vartinelli v. Aramark Correctional Services et al
Filing
13
OPINION AND ORDER granting 7 Motion to Dismiss. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CARLO VARTINELLI,
Plaintiff,
Case No. 18-cv-10964
v.
Paul D. Borman
United States District Judge
ARAMARK CORRECTIONAL
SERVICES, LLC, ERIC FOSS, MELVIN
EDDY, RON ECKERT, ANNA BENSON,
SHEILA BROWN, and K. ROUNDS,
Jointly and severally,
Defendants.
______________________________/
OPINION AND ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS (ECF NO. 7)
Plaintiff, currently incarcerated at the Macomb Correctional Facility (“MCF”),
files federal constitutional claims under 42 U.S.C. § 1983, alleging deliberate
indifference to medical and dietary needs, and also alleges state law claims of
intentional infliction of emotional distress and negligence. (ECF No. 1, Compl. Civil
Cover Sheet PgID 1.) More specifically, Plaintiff claims that Defendants have
repeatedly and deliberately exposed him to peanut butter and fish, substances that
were known to the Defendants to cause serious medical reactions in the Plaintiff.
Plaintiff alleges that Defendants “continued deliberate indifference” to his “medical
1
needs and dietary well-being” has caused Plaintiff to suffer fatigue, severe muscle
pain, anaphylaxis, breathing problems, chest pain, and heart damage, among other
medical conditions.
In lieu of filing Answers to Plaintiff’s Complaint, Defendants have filed a
motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). (ECF No. 7.) Plaintiff filed a Response (ECF No. 9) and Defendant filed
a Reply (ECF No. 10). For the reasons that follow, the Court GRANTS the motion
to dismiss.
I.
FACTUAL BACKGROUND
Plaintiff alleges that Defendant Aramark provides food services to prisoners
under the jurisdiction of the Michigan Department of Corrections (“MDOC”) under
a 2009 contract, and specifically provides food services under that contract to Plaintiff
and others incarcerated at the MCF. (Compl. ¶ 6.) Plaintiff alleges that the individual
Defendants held the following positions as relevant to his claims: Eric Foss was the
Chief Executive Officer of Aramark; Anna Benson was employed by Aramark as a
Food Services Director, to provide food services to MDOC prisoners, including the
Plaintiff; Sheila Brown was employed by Aramark to provide Food Services to
MDOC prisoners, including the Plaintiff; Melvin Eddy was employed by Aramark as
a Food Services Director to provide food services to MDOC prisoners, including the
2
Plaintiff; Ron Eckert was employed by Aramark to provide Food Services to MDOC
prisoners, including the Plaintiff; K. Rounds was employed by Aramark to provide
Food Services to MDOC prisoners, including the Plaintiff. (Compl. ¶¶ 7-17.)
Plaintiff alleges that each of these individual Defendants was acting within the scope
and course of their employment with Aramark and were acting at all times under color
of state law pursuant to the contract between Aramark and MDOC. (Compl. ¶¶ 1819.)
Plaintiff alleges that for “several years, MDOC records document Plaintiff’s
allergies to peanut butter, fish and iodine and medically prescribed Special
Accommodation Orders direct that he not be provided with, or exposed to, fish or
peanut butter.” (Compl. ¶ 25, Exs. H, I.) Exhibit H attached to Plaintiff’s Complaint
suggests approximately nine (9) instances, between 1998 and 2014, of Plaintiff
experiencing and being treated for acute allergic reactions from exposure to fish, and
less commonly to peanut butter, at a series of different MDOC correctional facilities.
On at least one occasion the source of the exposure was another inmate cooking fish
and not Aramark or the MDOC’s preparation or service of an allergen to the Plaintiff.
There appears to be no dispute that when exposed, Plaintiff did suffer acute and nontrivial reactions. In some instances Plaintiff was treated effectively at the correctional
facility but in some instances Plaintiff was taken by EMS for treatment at a hospital
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for anaphylactic reactions to the smell of fish. (Ex. H, PgID 63, 64, 68, 70, 71, 73, 78,
81, 83.)1
Exhibit H also documents numerous efforts over these years on the part of both
the MDOC and Aramark to address Plaintiff’s serious allergic reactions to these
allergens and to isolate him from such exposures. Among the efforts to prevent
allergic occurrences were the following: Plaintiff was given authorization to be served
his meals in his housing unit (and not required to be present in Food Services) (Ex. H,
PgID 65); notice was disseminated to all prison staff that Plaintiff was not to be
present in any buildings where fish was being prepared, stored, or consumed (Ex. H,
PgID 66); Plaintiff was authorized to have a fan in his cell (Ex. H, PgID 78); multiple
accommodations were written for Plaintiff to be served no food items containing fish
or peanut butter (Ex. H, PgID 73, 78); directives were given that Plaintiff never be
“called out” close to where fish was being prepared or served, that Plaintiff have a fan
in his cell at all times, that he continuously be served meals in his cell, and that he
have EpiPens on hand for emergencies. (Ex. I, PgID 85-86.)
Plaintiff’s Complaint in this action relates to six instances of alleged exposure
1
Plaintiff makes no complaints in this action about the treatment he received when
he did suffer an allergic reaction. There is no claim that any Defendant failed to
provide him with adequate medical care when he suffered an allergic reaction. His
claims all relate to what he perceives as a failure to prevent the exposures that resulted
in allergic reactions.
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to these allergens between January 2014 and January 2015. Plaintiff alleges that he
filed six grievances between January 25, 2014, and January 3, 2015, that describe the
conduct of the Defendants that Plaintiff alleges amounted to deliberate indifference
to his medical needs and dietary restrictions.
A January 25, 2014 grievance states that Defendant Eddy, the Aramark food
services director, is “fully aware” that Plaintiff suffers from “life threatening allergies
to the smell of fish,” but continues to allow Plaintiff to be exposed to or served fish
and peanut butter. Eddy responds to this grievance, stating that Plaintiff has a
standing order that clearly states no peanut butter or fish and that cooks must follow
these restrictions at all times. (Compl. Ex. A, PgID 17-19.)
A June 30, 2014 grievance states that “Aramark’s Food Services served me
salmon fish fillets in my tray knowing that I am severely allergic to such food
substance.” (Compl. Ex. B, PgID 23.) Plaintiff states that “Aramark’s Food Director
Melvin Eddy and Food Services Assistant Mr. Ron Eckert, personally spoke to
Plaintiff and admitted being fully aware about the severity of my food allergies [and]
assured me that such harmful food-substances will not be placed on my food again.”
(Id.) Plaintiff alleges that despite their knowledge of his condition, Plaintiff continues
to be served food containing peanut butter and fish. (Id.) Defendant Eckert responds
that Plaintiff “should not be served foods to which he is allergic,” and notes that
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“special diet menu slips have been requested from MDOC” and “until they arrive
Plaintiff’s trays will be checked to verify they are correct.” (Compl. Ex. B, PgID 25.)
Defendant Eddy reviewed the grievance response. (Id.)
An October 12, 2014 grievance states that “Aramark Food Services located at
[MCF] again sent Plaintiff peanut-butter.” (Compl. Ex. C, PgID 30.) Plaintiff states
that this is despite Defendants Eckert and Eddy “repeated promise that ‘It will not
happen again.’” (Id.) The grievance response acknowledges that Plaintiff “does in
fact have a documented food allergy and is on an in house feeding only detail that
calls for no fish or peanut butter.” (Id. at PgID 32.) The grievance response
acknowledges that “there has been occasion that mistakes have been made,” and “on
several occasions Aramark did deliver trays to Plaintiff which did include fish and
peanut butter which he is highly allergic to and has a medical detail to have meals in
due to his severe allergy to the items.” (Id.) The grievance response goes on to state
that “the facility has spoken with Aramark staff about the severe nature of this issue
and that swift action needed to be taken.” (Id.) The response states that “the
individual inmate worker who is responsible for the incident on October 10, 2014 has
been handled administratively.” (Id.) The response states that “Aramark has spoken
to all of their staff to ensure they understand the seriousness of the issue and have
created a diet slip for the diet cooks to follow to minimize the risk of getting the
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wrong items on the tray.” (Id.) The response concludes that “Aramark staff will
continue to monitor for compliance of the medical order.” (Id.)
A December 12, 2014 grievance was filed against Defendant Benson,
Aramark’s Food Services Director and Defendant Brown, Assistant Food Services
Director, states that on December 12, 2014, Plaintiff was served food containing fish
and suffered a violent allergic reaction, for which he received treatment at MRF’s
health services. (Compl. Ex. E, PgID 43 – Plaintiff appears to have confused Exhibits
D and E, as Exhibit E appears to be the December 12, 2014 grievance and Exhibit D
appears to be the December 24, 2014 grievance.) Plaintiff claims that since his arrival
at the MRF facility, he had been served peanut butter three times, and suffered violent
allergic reaction. (Id. PgID 43.) The grievance states that Defendant Benson “simply
stated that she will not accommodate any medical dietary needs until a dietician would
instruct her to do so.” (Id.) The grievance states that “in spite of my medical orders,
in spite of [] been informed about the potential risks to my health and safety, in spite
of knowing the gravity and consequences of their actions, Ms. Benson and Ms. Brown
chose to intentionally act with deliberate indifference, and disregard for the pain and
suffering their actions ha[ve] been subjecting me to.” (Id. at PgID 44.) The grievance
response states that the Food Services director had not received the diet detail for the
Plaintiff, who had recently been transferred to the MRF facility, and scheduled a
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meeting with the dietician and health care per MDOC guidelines.” (Id. at PgID 44.)
A December 24, 2014 grievance, states that on December 24, 2014 Plaintiff was
served peanut butter and suffered a severe allergic reaction and on December 26,
2014, was served a turkey sandwich with nothing on it instead of fish and on
December 27, 2014, was served “a purported chicken salad” and was being deprived
of food. The grievance states that Defendants Benson, Brown and Rounds (all Food
Service Directors or Assistant Directors) have “refused to do their job,” and that
Defendants Foss and “Aramark’s President,” are “fully aware of their employees
conduct and have equally acted with deliberate indifference. (Compl. Ex. D, PgID
37.) This grievance states that Defendant Benson retaliated against the Plaintiff for
“engaging in protected conduct.” (Id. at PgID 39.) Plaintiff states that Defendant
Benson “does not know what is going on in food services,” but is “ultimately
responsible for whatever food is provided to prisoners.” (Id.)
Finally, a January 3, 2015 grievance states that as a result of Defendants
Benson, Brown, and Rounds’ “continuous refusal to honor and follow [Plaintiff’s]
medically prescribed diet, [he] was served food contaminated with peanut butter
which caused [him] to suffer an allergic reaction.” (Compl. Ex. F, PgID 50.) The
grievance states that Defendant Benson refused to acknowledge that Plaintiff had been
served peanut butter and retaliated against him for complaining by sending “her staff”
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to harass Plaintiff. (Id.) Plaintiff states that Defendant Benson had been handed
Plaintiff’s “Special Accommodation Notice” indicating his allergy to fish and peanut
butter “more than four times,” and did not need a dietician to indicate that fish and
peanut butter should not be served on Plaintiff’s trays. The December 24, 2014
grievance response noted that “health care has contacted Aramark Food Service
director Benson and emailed Mr. Willard, Dietician, to request therapeutic diet as of
12/21/14.” (PgID 37.) Plaintiff states in his grievance that everyone knew about his
allergies and there was no need to request a therapeutic diet. (Id. PgID 51.) Plaintiff
alleges that Ms. Benson is “ultimately responsible for any food that is provided to
prisoners,” and asserts that “Ms. Benson does not know what is going on in food
services.” (Id. PgID 38) (emphasis in original).
Plaintiff alleges that on the dates of these six grievances, “Defendants
knowingly withheld from subordinate kitchen workers the fact of Plaintiff’s allergies
and the medically prescribed Special Accommodation Orders.” (Compl. ¶ 29.)
Finally, Plaintiff filed a grievance on August 2, 2014, complaining that on July
31, 2014, he tried to speak to “Aramark’s Food Inspector and she refused to speak to
me.” (Compl. Ex. G, PgID 56.) Plaintiff did not grieve any specific incident but
complained that “at least 15 times” fish and peanut butter had been served to him by
“staff at MCF’s Food Services,” exposing him to reactions “lethal to his health.” (Id.)
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The grievance response stated that Plaintiff had been transferred to a different
correctional facility and his request to meet with MCF Food Services could therefore
not be accommodated. (Id.)
II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) allows for the dismissal of a case
where the complaint fails to state a claim upon which relief can be granted. When
reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the
complaint in the light most favorable to the plaintiff, accept its allegations as true, and
draw all reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of
Memphis, 695 F.3d 531, 538 (6th Cir. 2012). To state a claim, a complaint must
provide a “short and plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he complaint ‘does not need detailed factual
allegations’ but should identify ‘more than labels and conclusions.’” Casias v.
Wal–Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). The court “need not accept as true a legal
conclusion couched as a factual allegation, or an unwarranted factual inference.”
Handy-Clay, 695 F.3d at 539 (internal citations and quotation marks omitted). In other
words, a plaintiff must provide more than a “formulaic recitation of the elements of
a cause of action” and his or her “[f]actual allegations must be enough to raise a right
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to relief above the speculative level.” Twombly, 550 U.S. at 555-56. The Sixth Circuit
has observed that “[t]o survive a motion to dismiss, a litigant must allege enough facts
to make it plausible that the defendant bears legal liability. The facts cannot make it
merely possible that the defendant is liable; they must make it plausible.” Agema v.
City of Allegan, 826 F.3d 326, 331 (6th Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)).
In ruling on a motion to dismiss, the Court may consider the complaint as well
as (1) documents that are referenced in the plaintiff’s complaint and that are central
to plaintiff’s claims, (2) matters of which a court may take judicial notice (3)
documents that are a matter of public record, and (4) letters that constitute decisions
of a governmental agency. Thomas v. Noder-Love, 621 F. App’x 825, 829 (6th Cir.
2015) (“Documents outside of the pleadings that may typically be incorporated
without converting the motion to dismiss into a motion for summary judgment are
public records, matters of which a court may take judicial notice, and letter decisions
of governmental agencies.”) (Internal quotation marks and citations omitted);
Armengau v. Cline, 7 F. App’x 336, 344 (6th Cir. 2001) (“We have taken a liberal
view of what matters fall within the pleadings for purposes of Rule 12(b)(6). If
referred to in a complaint and central to the claim, documents attached to a motion to
dismiss form part of the pleadings. . . . [C]ourts may also consider public records,
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matters of which a court may take judicial notice, and letter decisions of governmental
agencies.”); Greenberg v. Life Ins. Co. Of Virginia, 177 F.3d 507, 514 (6th Cir. 1999)
(finding that documents attached to a motion to dismiss that are referred to in the
complaint and central to the claim are deemed to form a part of the pleadings). Where
the claims rely on the existence of a written agreement, and plaintiff fails to attach the
written instrument, “the defendant may introduce the pertinent exhibit,” which is then
considered part of the pleadings. QQC, Inc. v. Hewlett-Packard Co., 258 F. Supp. 2d
718, 721 (E.D. Mich. 2003).
III.
ANALYSIS
A.
Plaintiff Has Plausibly Alleged That Aramark is a State Actor
“To state a claim under 42 U.S.C. § 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). Plaintiff alleges that “Aramark was
engaged under a 2009 contract with MDOC to provide meals and food services to
prisoners under the jurisdiction of the MDOC, including Plaintiff and others residing
at the MCF in the Eastern District of Michigan.” (Compl. ¶ 6.) Plaintiff further
alleges that “[a]t the time of the events detailed in this Complaint, [the individual
Defendants] were acting under color of state law pursuant to the contract between
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Aramark and MDOC.” (Compl. ¶ 19.) Assuming, as the Court must at this motion
to dismiss stage, the truth of these allegations, Plaintiff has plausibly alleged that
Aramark is a state actor.
“In the context of medical services, the Sixth Circuit has stated that ‘it is clear
that a private entity which contracts with the state to perform a traditional state
function such as providing medical services to prison inmates may be sued under §
1983 as one acting under color of state law.’” Dykes v. Marshall, No. 14-cv-1167,
2016 WL 1059618, at *3 (W.D. Mich. March 17, 2016) (quoting Hicks v. Frey, 992
F.2d 1450, 1458 (6th Cir. 1993)). “Based on this reasoning, court[s] have allowed
prisoners to proceed on § 1983 claims against Aramark employees.” Id. (citing Mills
v. Aramark Corp., No. 1:15-cv-610, 2015 WL 7820872, at *3 (S.D. Ohio Nov. 10,
2015); Horn v. Hunt, No. 2:15-cv-220, 2015 WL 5873290, at *4–5 (S.D. Ohio Oct.
8, 2015) (“rejecting Aramark employee’s assertion that he was not a state actor for
purposes of § 1983 because Aramark assumed the state’s obligation to provide food
service to inmates”)). See also McDaniel v. Bechard, No. 15-cv-13892, 2017 WL
3699762, at *3 n. 6 (E.D. Mich. Aug. 2, 2017) (“Defendants were affiliated with
Aramark, which contracted with the MDOC to provide food to inmates—an obligation
borne by the State which numerous courts have found sufficient to confer “state actor”
status.”) (citing Horn, supra). Plaintiff has adequately alleged state action as to
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Aramark and as to each of the Defendant Aramark food service workers.
B.
Plaintiff Fails to Allege a § 1983 Eighth Amendment Claim
1.
The deliberate indifference framework.
“The constitutional right at issue [here] arises from the Eighth Amendment’s
prohibition on cruel and unusual punishment because [Vartinelli] was serving a
criminal sentence at the time [of the alleged unconstitutional conduct].” Shadrick v.
Hopkins County, Ky., 805 F.3d 724, 737 (6th Cir. 2015). The Eighth Amendment
“forbids prison officials from ‘unnecessarily and wantonly inflicting pain’ on an
inmate by acting with ‘deliberate indifference’ toward the inmate’s serious medical
needs.” Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The test for determining whether an
officer was deliberately indifferent has both a subjective and an objective component.
Comstock v. McCrary, 273 F.3d 693, 702-03 (6th Cir. 2001).
The objective component is satisfied if the plaintiff alleges that the medical
need at issue is “sufficiently serious.” Id. at 703 (quoting Farmer v. Brennan, 511
U.S. 825, 834 (1994)). “[A] medical need is objectively serious if it is one that has
been diagnosed by a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.”
Blackmore, 390 F.3d at 897 (6th Cir. 2004) (quoting Gaudreault v. Municipality of
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Salem, 923 F.2d 203, 208 (1st Cir. 1990)) (emphasis in original).
To satisfy the subjective criterion, “the plaintiff must allege facts which, if true,
would show that the official being sued subjectively perceived facts from which to
infer substantial risk to the prisoner, that he did in fact draw the inference, and that he
then disregarded that risk.” Comstock, 273 F.3d at 703. It is not enough for the
plaintiff to allege that the officer should have recognized a serious medical risk
existed. See Farmer, 511 U.S. at 838 (“[A]n official’s failure to alleviate a significant
risk that he should have perceived but did not, while no cause for commendation,
cannot under our cases be condemned as the infliction of punishment.”).
“The doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). “In § 1983 constitutional torts like this one, qualified immunity
prevents government officials from being held liable if (1) the officers did not violate
any constitutional guarantees or (2) the guarantee, even if violated, was not ‘clearly
established’ at the time of the alleged misconduct.” Arrington-Bey v. City of Bedford
Heights, Ohio, 858 F.3d 988, 992 (6th Cir. 2017), rehearing en banc denied (July 5,
2017), certiorari denied 138 S. Ct. 738 (Jan. 16, 2018) (citing Pearson, 555 U.S. at
15
232). Courts may “exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.
“When . . . a defendant raises qualified immunity as a defense . . . [t]he plaintiff has
the burden of showing that a right is clearly established . . . [and] the defendant carries
the burden of showing that the challenged act was objectively reasonable in light of
the law existing at the time. In satisfying this burden, a defendant can rely on a
reasonable mistake of fact, for [q]ualified immunity applies irrespective of whether
the official’s error was a mistake of law or a mistake of fact, or a mistake based on
mixed questions of law and fact.” Harris v. Klare, 902 F.3d 630, 637 (6th Cir. 2018)
(internal quotation marks and citations omitted) (ellipses and alterations in original).
“Persons sued in their individual capacities under 1983 can be held liable based
only on their own unconstitutional behavior.” Heyerman v. County of Calhoun, 680
F.3d 642, 647 (6th Cir. 2012) (citations omitted). As the Supreme Court explained in
Ashcroft v. Iqbal, 556 U.S. 662 (2009):
[R]espondent believes a supervisor’s mere knowledge of his
subordinate's discriminatory purpose amounts to the supervisor’s
violating the Constitution. We reject this argument. Respondent’s
conception of “supervisory liability” is inconsistent with his accurate
stipulation that petitioners may not be held accountable for the misdeeds
of their agents. 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. Absent vicarious liability, each Government official, his or
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her title notwithstanding, is only liable for his or her own misconduct. In
the context of determining whether there is a violation of a clearly
established right to overcome qualified immunity, purpose rather than
knowledge is required to impose [] liability on the subordinate for
unconstitutional discrimination; the same holds true for an official
charged with violations arising from his or her superintendent
responsibilities.
556 U.S. at 677. The Sixth Circuit has likewise “held that § 1983 liability must be
based on more than respondeat superior, or the right to control employees.” Shehee
v. Luttrell, 199 F.3d 295, 300 (6th Cir. 2005). “[I]t is well-settled that qualified
immunity must be assessed in the context of each individual's specific conduct.”
Stoudemire v. MDOC, 705 F.3d 560, 570 (6th Cir. 2013) (quotation omitted).
Therefore, “the question of whether an official possessed the requisite knowledge and
culpable mental state to sustain a deliberate indifference claim ‘must be addressed for
each officer individually.’” Id. (quoting Garretson v. City of Madison Heights, 407
F.3d 789, 797 (6th Cir. 2005)).
2.
Plaintiff’s food-allergy based claim.
Several courts have recognized that food allergies may present a serious
medical need under certain circumstances:
Courts have recognized two situations in which food allergies may
constitute a serious medical need. The first is if the diet being served to
an inmate poses a “sufficiently serious” injury or medical consequence
to the inmate's health. See, e.g., Sweeting v. Miller, No. 7:14CV187,
2015 U.S. Dist. LEXIS 105839, at *8, 2015 WL 4773276 (W.D. Va.
Aug. 12, 2015) (finding no claim where the only reaction inmate
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suffered from eating a food he was supposedly allergic to was a swollen
tongue); Joseph v. Mercer Cty. Comm'rs, No. 3:12-CV 0847, 2012 U.S.
Dist. LEXIS 171097, at *35-36, 2012 WL 6018125 (N.D. Ohio Dec. 3,
2012) (no claim where plaintiff was allegedly served food he was
allergic to but had no allergic reaction or other injury as a result).
Food allergies may also constitute a serious medical need if they prevent
an inmate from receiving a nutritionally adequate diet. See, e.g., Swinton
v. Wright, No. 3:16-cv-659 (SRU), 2016 U.S. Dist. LEXIS 83555, at
*3-4, 2016 WL 3579075 (D.C. Conn. June 28, 2016); Sweeting v. Miller,
2015 U.S. Dist. at *7; Escalante v. Huffman, No. 7:10-cv-00211, 2011
U.S. Dist. LEXIS 81382, 2011 WL 3107751 (W.D. Va. July 26, 2011)
(report and recommendation), adopted by 2011 U.S. Dist. LEXIS 90520,
2011 WL 3584992 (Aug. 15, 2011).
Balcar v. Smith, No. 16-cv-428, 2017 WL 380931, at *3 (W.D. Ky. Jan. 26, 2017)
(footnote omitted), aff’d Balcar v. Smith, No. 17-5159, 2017 WL 3613479 (6th Cir.
July 17, 2017). See also Bailey v. Aramark Corp., No. 16-343, 2017 WL 3841687,
at *3-4 (E.D. Ky. Sept. 1, 2017) (“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 are given but they fail to provide adequate nutrition.”); Gambrell
v. Weichart, No. 15-cv-1146, 2017 WL 1194011, at *4 (E.D. Wis. March 30, 2017)
(noting that courts “have found food allergies to be sufficiently serious when the
prisoner shows substantial physical symptoms stemming from allergic reactions” such
as “hives, throat swelling, itching, difficulty breathing, vomiting”) (collecting cases);
Williams v. Horvey, No. 14-cv-1289, 2014 WL 6657703, at *3 (S.D. Ill. Nov. 24,
18
2014) (finding that complaint asserting deliberate indifference to a food allergy
sufficiently alleged a serious medical need where prison medical records documented
the plaintiff’s diagnosis of allergy to beans and eggs, which caused vomiting and
problems breathing, requiring treatment with Benadryl); Tate v. Bell, No. 06-cv00627, 2007 WL 1965592, at *5 (S.D. Ohio July 3, 2007) (acknowledging that “it is
clear that an allergic reaction could constitute a serious medical need,” but finding no
documentation in the record with respect to the plaintiff’s reactions and/or symptoms).
Defendants conceded at the hearing on the motion to dismiss, but only for
purposes of the Court’s resolution of their motion to dismiss, that Plaintiff’s
Complaint sufficiently alleges the objective component of the deliberate indifference
analysis – i.e. that Plaintiff’s allergies presented a serious medical condition. The
Court also notes that it is documented in the prison records that Plaintiff attaches as
Exhibits to his Complaint that on more than one occasion he was transported from
prison via EMS to a hospital suffering from allergic reactions to fish and/or peanut
butter. For example, when confined at the Brooks Correctional Facility, Plaintiff was
transported to the hospital suffering from an anaphylactic reaction to the smell of fish
that was apparently being cooked by another inmate near him in a microwave, causing
him to become short of breath, break out in raised hives and a rash that caused severe
itching. He was treated with Epinephrine, Benadryl , Tagament, and Prednisone and
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given a prescription for an EpiPen. (Compl. Ex. H, PgID 62-63, Hackley Hospital
Emergency Room Record.) The Exhibits attached to Plaintiff’s Complaint reflect
additional similar instances, most of which were adequately treated through the prison
healthcare services, although there were additional incidents that did require transport
to a hospital. (Compl. Ex. H, PgID 64.) These serious medical reactions supply the
facts that the Sixth Circuit recognized in Balcar could constitute a serious medical
condition but which the Sixth Circuit found lacking in that case. 2017 WL 3613479,
at *2. Thus, for purposes of analysis, the Court assumes that Plaintiff has satisfied the
objective component of the deliberate indifference analysis.
Thus, the focus here is on the subjective component and more specifically “on
whether each individual [Defendant] had the personal involvement necessary to permit
a finding of subjective knowledge.” Bishop v. Hackel, 636 F.3d 757, 768 (6th Cir.
2011). The Court is required to “evaluate the individual liability of each [defendant]
individually.” Id. at 767. In this case, Plaintiff makes no distinction in his Complaint
among the individual Defendants as to the circumstances surrounding any specific
alleged incident of exposure to an allergen.
Throughout the Complaint, the
Defendants are referred to collectively. Specifically, Plaintiff lists six separate
“instances in which Defendants provided Plaintiff or exposed him to peanut butter or
fish,” and alleges that “[o]n those dates, and in deliberate indifference to Plaintiff’s
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medical and dietary well-being, Defendants knowingly withheld from subordinate
kitchen workers the fact of Plaintiff’s allergies and the medically prescribed Special
Accommodation Orders.” (Compl. ¶¶ 28-29.) The Complaint contains no allegations
that suggest the specific conduct of any particular Defendant about which Plaintiff
complains. Thus, to the extent that the Exhibits attached to Plaintiff’s Complaint
related to the six instances that form the basis for his Complaint (Compl. Exs. A-F)
offer some suggestion about the involvement of a particular individual Defendant, the
Court will discuss and analyze that conduct separately.
Although it is no doubt frightening for Plaintiff to have to experience these
allergic reactions in a correctional environment, in the end Plaintiff’s Complaint
simply fails to adequately allege the personal involvement or the subjective awareness
of any of the individual supervisor Defendants in the instances of exposure about
which Plaintiff complains in his Complaint. It is alleged and not disputed that there
were standing orders regarding Plaintiff’s need not to be served peanut butter or fish.
However, there are no plausible allegations in the Complaint or that can be gleaned
from the attached Exhibits, that any of these Defendants became aware that Plaintiff
was going to be exposed to one of these allergens in violation of those standing orders
and consciously chose to do nothing. There are many allegations that various
individuals “knew” about Plaintiff’s severe allergic reactions, and failed to prevent
21
further exposures. But, as discussed below, liability cannot be imposed on individuals
under the Eighth Amendment based upon the conduct of their subordinates.
“[L]iability must lie upon more than a mere right to control employees and cannot rely
on simple negligence. There must be some conduct on the supervisor's part to which
a plaintiff can point that is directly correlated with the plaintiff's injury.” Essex v.
County of Livingston, 518 F. App’x 351, 355 (6th Cir. 2013).
Here Plaintiff alleges that “Aramark’s Food Director Melvin Eddy and Food
Services Assistant Mr. Ron Eckert, personally spoke to Plaintiff and admitted being
fully aware about the severity of my food allergies [and] assured me that such harmful
food-substances will not be placed on my food again.” (Compl. Ex. B, PgID 23.)
Plaintiff alleges that despite their knowledge of his condition, Plaintiff “continues to
be served food containing peanut butter and fish.” (Id.) Defendant Eckert states in
a particular grievance response that Plaintiff “should not be served foods to which he
is allergic,” and notes that “special diet menu slips have been requested from MDOC”
and “until they arrive Plaintiff’s trays will be checked to verify they are correct.”
(Compl. Ex. B, PgID 25.) Defendant Eddy reviewed the grievance response. (Id.)2
2
It is well accepted that a defendant’s conduct in responding to a grievance cannot be
the basis for liability under § 1983. See, e.g. Shehee v. Luttrell, 199 F.3d 295, 300
(6th Cir. 1999) (holding that participation in the grievance process, standing alone,
cannot support a claim of individual liability under § 1983).
22
This grievance certainly demonstrates that Defendants Eddy and Eckert were aware
of Plaintiff’s allergic reaction to peanut butter and fish. But far from demonstrating
that Eddy and Eckert were deliberately indifferent to Plaintiff’s severe allergic
reactions, these records demonstrate that they took affirmative steps to ensure that
Plaintiff was not exposed to those allergens. Plaintiff alleges that despite the steps
taken by these Defendants to ensure Plaintiff’s safety, “he continues to be served food
containing peanut butter and fish.” But importantly Plaintiff does not allege who is
serving him that food containing those allergens – and certainly Plaintiff does not
allege that any of the individual Defendants actually served him or prepared his food
on any occasion. The MDOC even went so far as to inspect video of the food service
line on a day when Plaintiff alleged that he was served peanut butter in his lunch meat
food, specifically observed the preparation of Plaintiff’s tray, and were unable to
detect anyone placing peanut butter in Plaintiff’s tray. (Compl. Ex. F, PgID 53.)
Plaintiffs’ Complaint throughout speaks collectively of the conduct of the
“Defendants” and there are no allegations specifically related to any personal
involvement of any of the individual Defendants in serving Plaintiff food or exposing
him to the odor of food containing known allergens. While the Exhibits attached to
the Complaint, and referenced in the allegations Complaint, do provide additional
detail regarding those allegations, they fail to cross the plausibility threshold required
23
under Twombly and Iqbal to adequately allege an Eight Amendment claim. “In order
for liability to attach to any of these supervisors, Plaintiff must prove that they did
more than play a passive role in the alleged violations or show mere tacit approval of
the goings on. Plaintiff must show that the supervisors somehow encouraged or
condoned the actions of their inferiors.” Gregory v. City of Louisville, 444 F.3d 725,
751 (6th Cir. 2006). Plaintiff’s Complaint contains no allegations that would
plausibly suggest that any of the individual Defendants actually served Plaintiff the
offending allergen food items or “encouraged or condoned” any food service worker’s
conduct in allowing Plaintiff to be served or exposed to fish or peanut butter. Nor do
the Exhibits attached to the Complaint suggest the personal involvement of any
Defendant in personally serving or exposing Plaintiff to these prohibited foods at any
time.
Plaintiff alleges that Defendant Benson, “when faced with direct evidence that
there was peanut butter in Plaintiff’s food on one occasion,” blamed Plaintiff and
stated that “Aramark does not serve Plaintiff peanut butter.” (Compl. Ex. F, PgID 50.)
Plaintiff complains that Benson knew of Plaintiff’s food allergies and was doing
nothing to see that his food was free of these allergens. Importantly, Plaintiff asserts
in his grievance that Ms. Benson is “ultimately responsible for any food that is
provided to prisoners,” and asserts that “Ms. Benson does not know what is going on
24
in food services.” (Id. PgID 38) (emphasis in original). As discussed below, Ms.
Benson cannot be held liable in her supervisory capacity, as the Director of Food
services, for the actions of unidentified food service workers who allegedly placed
peanut butter in Plaintiff’s food despite standing orders that Plaintiff not be exposed
to peanut butter. In fact, Plaintiff concedes that Ms. Benson did not become
subjectively aware of the alleged contamination of his food in this particular instance
by alleging that Benson “does not know” what goes on in food service.3
3
Plaintiff does not specify the capacity in which he sues the individual Defendants
and the Complaint does not assert a separate municipal liability claim. Nothing in
Count I, which sets forth Plaintiff’s § 1983 claims, purports to be an official
capacity/failure to supervise/train claim against any of the individual Defendants in
their official capacities. See, e.g., Harvey v. Campbell County, Tenn., 453 F. App’x
557, 563 (6th Cir. 2011) (explaining that an entity’s “liability may be premised on its
policymaker's deliberate indifference” under certain circumstances); Essex v. County
of Livingston, 518 F. App’x 351, 354 (6th Cir. 2013) (explaining that a failure to
supervise claim against a municipality “would implicate the conduct of a defendant
supervisor insofar as he acted with deliberate indifference in his official capacity as
a policymaker”). The closest Plaintiff comes to such an allegation in Count I is the
assertion that “Defendants” (again collectively pleaded) “willfully fail[ed] to advise
subordinate food service personnel of Plaintiff’s allergies.” (Compl. ¶ 35.) The
Complaint contains no factual content at all regarding how food service workers were
informed of Plaintiff’s allergies or how they were supervised and this conclusory
allegation fails to satisfy the Twombly/Iqbal plausibility standard. “[I]t is not
reasonable to draw inferences . . . of inadequate training, deliberate indifference and
causal effect from the mere fact that [Plaintiff was served or exposed to fish or peanut
butter].” Harvey, 453 F. App’x at 568. Even were the Court to interpret this as an
inartful effort to plead a policy claim against the Defendants in their official capacity
as Aramark supervisors “mere allegations that an officer was improperly trained or
that an injury could have been avoided with better training are insufficient to make out
deliberate indifference.” Harvey, 453 F. App’x at 563. Plaintiff’s allegations fall
25
The allegations of the Complaint and the attached exhibits demonstrate that
Defendants Eddy and Eckert responded to Plaintiff’s grievances by ordering that he
be served a special diet that did not ever contain fish or peanut butter. Plaintiff’s
Complaint alleges that Defendant Foss is “the Chief Executive Officer (CEO) of
Defendant Aramark.” (Compl. ¶ 7.) In a grievance attached as an Exhibit to his
Complaint, Plaintiff asserts that Defendants Foss and “Aramark’s President,” are
“fully aware of their employees conduct and have equally acted with deliberate
indifference.” (Compl. Ex. D, PgID 37.) Allegations of an “awareness” of another’s
conduct are insufficient to state a claim under § 1983. Claims that supervisory
officials “were aware of alleged [unconstitutional conduct] but did not take
appropriate action . . . [are] insufficient to impose liability on supervisory personnel
under § 1983.” Poe v. Hayden, 853 F.2d 418, 429 (6th Cir. 1988). “‘Because § 1983
liability cannot be imposed under a theory of respondeat superior, proof of personal
involvement is required for a supervisor to incur personal liability.’” Grinter v.
Knight, 532 F.3d 567, 575 (6th Cir. 2008) (quoting Miller v. Calhoun County, 408
F.3d 803, 817 n. 3 (6th Cir. 2005)). “[L]iability under § 1983 must be based on active
unconstitutional behavior and cannot be based upon a mere failure to act.” Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). “‘At a minimum, a § 1983 plaintiff must
woefully short of plausibly suggesting such a claim.
26
show that a supervisory official at least implicitly authorized, approved or knowingly
acquiesced in the unconstitutional conduct of the offending subordinate.’” Grinter,
532 F.3d at 575 (quoting Bellamy v. Bradley, 729 F.3d 416, 421 (6th Cir. 1984)). As
the Sixth Circuit summarized in Peatross v. City of Memphis, 818 F.3d 233, 241 (6th
Cir. 2016),
It is well-settled that “[g]overnment officials may not be held liable for
the unconstitutional conduct of their subordinates under the theory of
respondeat superior.” Iqbal, 556 U.S. at 676, 129 S.Ct. 1937. In other
words, a supervisor cannot be held liable simply because he or she was
charged with overseeing a subordinate who violated the constitutional
rights of another. See Gregory v. City of Louisville, 444 F.3d 725, 751
(6th Cir.2006). Consequently, a mere failure to act will not suffice to
establish supervisory liability. Id.; see also Essex, 518 Fed. Appx at 355.
There must be some conduct on the supervisor's part to which the
plaintiff can point that is directly correlated with the plaintiff's injury.”).
We have long held that supervisory liability requires some “active
unconstitutional behavior” on the part of the supervisor. Bass v.
Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999); see also Hays v.
Jefferson Cty., 668 F.2d 869, 873–74 (6th Cir. 1982) (A “mere failure to
act (even) in the face of a statistical pattern of incidents of misconduct”
is not sufficient to confer liability) (internal quotation marks omitted).
818 F.3d at 241-42 (footnote omitted).
Plaintiff in this case is represented by counsel, yet the Complaint contains
threadbare collective allegations against “Defendants” and the Plaintiff’s vaguely
worded, very brief Response to Defendants’ motion to dismiss does nothing to expand
upon the nature of the Plaintiff’s claims. With bald assertions such as “Defendants,
acting under color of state law, denied Plaintiff the rights and protections provided by
27
the First, Eighth, and Fourteenth Amendments,” and “Defendants knew of his
allergies but intentionally exposed him to toxins, compromising his health,” Plaintiff
gives no greater insight into the factual bases for his claims. (ECF No. 9, Pl.’s Resp.
7, PgID 13.) Plaintiff does not even separately address in his Response the conduct
of any individual Defendant or offer any separate analysis of the objective and
subjective components of his deliberate indifference claim. The most that Plaintiff
offers in his Response is the generalization that Defendants Foss, Eddy, and Benson
“are being sued for their own personal actions . . . because Plaintiff requested of each
that they stop exposing him, and they all refused to discuss the matter and, with
deliberate indifference, chose not to stop.” (Pl.’s Resp. 9, PgID 159.)4 This is the
extent of the factual elaboration and Plaintiff’s Response reveals nothing about any
active unconstitutional conduct on the part of any of these Defendants, complaining
only that collectively “they did [nothing] to stop the practice.” (Id. PgID 159.) Such
4
Plaintiff does not even mention the names of the other individual Defendants –
Eckert, Brown, and Rounds – or respond to the motion to dismiss them from this
action. Plaintiff is thus deemed to have abandoned any claims against Eckert, Brown,
and Rounds. “The Sixth Circuit has held that a party's failure to respond to or oppose
an issue raised in a Rule 12(b)(6) motion may result in waiver of the issue.” Hazime
v. Fox TV Stations, Inc., No. 12-cv-15072, 2013 WL 4483485, at *8 (E.D. Mich. Aug.
19, 2013) (quoting Simpson v. G4S Secure Solution (USA), Inc., No. 12-2875, 2013
WL 2014493, *3 (W.D. Tenn. May 13, 2013) (citing Allstate Ins. Co. v. Global Med.
Billing, Inc., No. 12–1263, 2013 WL 1405142, *3 (6th Cir. Apr.8, 2013); Humphrey
v. U.S. Attorney Gen.'s Office, 279 F. App'x 328, 331 (6th Cir. 2008)).
28
allegations of failures to act are insufficient to state an individual liability deliberate
indifference claim under § 1983.
While Plaintiff alleges (and in fact Defendants concede) that some mistakes
(Plaintiff identifies six such instances in this Complaint) were made in the service of
over 1,000 meals to the Plaintiff over the course of a year and Plaintiff was served or
exposed to foods to which he was allergic, there is no allegation that any of these
Defendants actually served or exposed Plaintiff to these allergens or that any of the
individual Defendants in these six instances knew or were aware that food service
workers were serving Plaintiff fish or peanut butter or exposing him to these foods.
“[D]espite evidence that [Aramark] officials might have imperfectly implemented the
[allergy] requirements, or were even negligent, there was no basis to conclude that any
of the defendants deliberately [served or exposed Plaintiff to the offending foods].”
Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010) (internal quotation marks and
citation omitted). Plaintiff claims that these Defendants failed to prevent other food
service workers from serving Plaintiff fish and/or peanut butter. Plaintiff has failed
to adequately allege either the personal involvement or the subjective awareness of
any of the individual Defendants in the six instances of exposure that form the basis
for his Complaint as would be sufficient to state a claim of deliberate indifference
against any one of them individually under § 1983. “Plaintiff[] ha[s] not, therefore,
29
carried [his] burden of showing that the individual defendants are not entitled to
qualified immunity from liability in their individual capacities.” Harvey, 453 F.
App’x at 564.
C.
Plaintiff Fails to Allege a § 1983 First Amendment Claim
Plaintiff’s barebones Complaint states three separate claims: Count I “Violation of Civil Rights;” Count II - “Intentional Infliction of Emotional Distress;”
and Count III - “Negligence.”
In Count I, Plaintiff conclusorily asserts that
“Defendants violated Plaintiff’s rights under the First, Eighth, and Fourteenth
Amendments.” (Compl. ¶ 35, PgID 8.) The vast majority of Plaintiff’s allegations
relate to his Eight Amendment claim. The only allegation that could potentially be
related to a First Amendment claim states in full: “Defendants violated Plaintiff’s
rights under the First Amendment . . . by . . . retaliating against Plaintiff for protected
activity.” (Compl. ¶ 35(a).) Plaintiff does not allege any facts regarding the nature
of this “protected activity” and does not describe which Defendants knew about this
undefined protected activity, or what retaliatory conduct any Defendant took in
response to this undefined protected activity.
Defendants interpret Plaintiff’s
reference to the First Amendment to be an effort to state a First Amendment retaliation
claim based on the six grievances identified in Plaintiff’s Complaint, and they direct
their motion to dismiss to such a claim. Plaintiff’s four-sentence response in support
30
of his First Amendment Retaliation claim does nothing more than reiterate the
barebones allegations of the Complaint, stating in full as follows: “Plaintiff’s earlier
complaints against Aramark fall well within the First Amendment right to petition
Government for redress of grievances. His continued exposure to toxins, accelerating
after he complained, is adverse action, which reasonable jurors may conclude, was
motivated at least in part by Vartinelli’s complaint about the same entity that
retaliated.” (Resp. 6, PgID 156.) But as to who “continued” to expose him or how
they exposed him, we are left to speculate.
“‘[A]n inmate has an undisputed First Amendment right to file grievances
against prison officials on his own behalf.’” Maben v. Thelen, 887 F.3d 252, 264 (6th
Cir. 2018) (quoting Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000)). To state
a First Amendment retaliation claim, a Plaintiff must allege facts establishing that:
(1) the plaintiff engaged in protected conduct; (2) an adverse action was
taken against the plaintiff that would deter a person of ordinary firmness
from continuing to engage in that conduct; and (3) there is a causal
connection between elements one and two—that is, the adverse action
was motivated at least in part by the plaintiff's protected conduct.
Id. at 262 (quoting Thaddeus–X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999)).
No factual allegations appear in the Complaint that would satisfy the
Twombly/Iqbal plausibility standard as to any alleged First Amendment claim.
Plaintiff does not define the protected activity and does not identify which Defendants
31
took what action against him in response. Plaintiff offers minimal elaboration in his
Response: “His continued exposure to toxins, accelerating after he complained, is
adverse action which, reasonable jurors may conclude, was motivated at least in part
by Vartinelli’s complaints about the same entity that retaliated.” (Pl.’s Resp. 6, PgID
156.) But who continued to expose Plaintiff to toxins and how? Plaintiff does not
endeavor even to identify which Defendants were aware of his “protected activity” or
how he or she took what type of adverse action against him in response. In fact,
Plaintiff attributes the alleged retaliatory conduct to an “entity.” In order to address
such a claim, the Court would be required to hypothesize which Defendants Plaintiff
might be claiming retaliated against him and further hypothesize about how they
might have done so. It is widely accepted that issues “adverted to . . . in a perfunctory
manner, unaccompanied by some effort at developed argumentation,” are deemed
waived. Clemente v. Vaslo, 679 F.3d 482, 497 (6th Cir. 2012). “It is not sufficient
for a party to mention a possible argument in the most skeletal way, leaving the court
to put flesh on its bones.” Bishop v. Gosiger, Inc., 692 F. Supp. 2d 762, 774 (E.D.
Mich. 2010) (quoting McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)).
Even were the Court to hypothesize such a claim here, Plaintiff’s allegations fall
drastically short of describing the personal involvement of any of the individual
Defendants in such retaliatory conduct. For the same reasons discussed supra
32
regarding Plaintiff’s Eight Amendment claim, any First Amendment retaliation claim
that could be gleaned from the Complaint would fall well short of satisfying the
Twombly/Iqbal plausibility standard as to the personal involvement of any of the
individual Defendants in such a claim. “Plaintiff[] ha[s] not, therefore, carried [his]
burden of showing that the individual defendants are not entitled to qualified
immunity from liability in their individual capacities.” Harvey, 453 F. App’x at 564.
D.
Plaintiff Has Failed to Adequately Allege a Municipal Liability
Claim Against Aramark
A municipality can be held liable under § 1983 where it is shown that a
municipal custom or policy is the driving force behind the alleged constitutional
violation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978) (“The
language [of § 1983] plainly imposes liability on a government that, under color of
some official policy, “causes” an employee to violate another's constitutional rights.”).
“To prevail in a § 1983 suit against a municipality, a plaintiff must show that the
alleged federal right violation occurred because of a municipal policy or custom.”
Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005). A plaintiff
asserting a § 1983 claim on the basis of municipal custom or policy must identify the
policy, connect the policy to the municipality, and show that the specific injury at
issue was caused by the execution of that policy. Graham v. County of Washtenaw,
358 F.3d 377, 383 (6th Cir. 2004). The causal link must be strong enough to support
33
a finding that the defendants’ deliberate conduct can be deemed the “moving force”
behind the violation. Id. (quoting Waters v. City of Morristown, 242 F.3d 353, 362
(6th Cir. 2001)). “These stringent standards are ‘necessary to avoid de facto
respondeat superior liability explicitly prohibited by Monell.’” Id. (emphasis in
original) (quoting Doe v. Claiborne County Tenn., 103 F.3d 495, 508 (6th Cir. 1996)).
In Thomas, the Sixth Circuit identified four ways a plaintiff may prove the
existence of an illegal policy or custom. 398 F.3d at 429. The plaintiff can point to
(1) the government’s legislative enactments or official policies; (2) actions by officials
with final decision-making authority; (3) a policy of inadequate training or
supervision; or (4) a custom or practice of tolerating the violation of federal rights by
its officers or agents. Id. Thus, to state a claim against Aramark, Plaintiff must
identify official policies, actions of officials with final decision-making authority, a
policy of inadequate training or supervision, or a custom or practice of tolerating the
violation of federal rights. Where no formal written policy exists, the critical inquiry
is whether there is a policy or custom that although not explicitly authorized “is so
permanent and well settled as to constitute a custom or usage with the force of law.”
Jones v. Muskegon County, 625 F.3d 935, 946 (6th Cir. 2010) (quoting McClendon
v. City of Detroit, 255 F. App’x 980, 982 (6th Cir. 2007)).
34
Plaintiff does not plead a separate municipal liability claim in his Complaint
and does not even mention a policy claim against Aramark in his Response, let alone
identify any Aramark policy or practice or explain how it was the “moving force”
behind the alleged violations of Plaintiff’s constitutional rights. As discussed supra
at Note 3, any policy claim against Aramark is inadequately developed and deemed
waived. “Issues adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, like here, are deemed waived.” Hanson v. Madison
County Detention Center, 736 F. App’x 521, 541 (6th Cir. 2018).
E.
Given the Dismissal of Plaintiff’s Federal Claims, the Court Declines
Supplemental Jurisdiction Over Plaintiff’s State Law Claims
Given the absence of a viable federal claim, the Court declines to exercise
supplemental jurisdiction over Plaintiff’s state law claims and dismisses them without
prejudice. “Once the district court dismissed all of the claims over which it had
original jurisdiction, it acted squarely within its discretion by declining supplemental
jurisdiction over the remaining IIED claim and dismissing it without prejudice.”
Booker v. City of Beachwood, 451 F. App’x 521, 522-23 (6th Cir. 2011) (citing 28
U.S.C. § 1367(c)(3)). “When, as here, ‘all federal claims are dismissed before trial,
the balance of considerations usually will point to dismissing the state law claims.’”
Id. (quoting Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1254–55
(6th Cir. 1996)). Indeed, in his Response Plaintiff agrees that this may be the
35
appropriate resolution of his state law claims should his federal claims be dismissed.
IV.
CONCLUSION
The individual Aramark Defendants can be liable under § 1983 only upon a
showing that they “either encouraged the specific incident[s] of misconduct or in some
other way directly participated in [them].” Harvey, 453 F. App’x at 563 (alterations
added). Plaintiff’s Complaint contains no allegations plausibly suggesting that any
of the individual Defendants had any personal involvement in the allergen exposures
underlying the six grievances that are the subject of his Complaint. Indeed, Plaintiff’s
Complaint contains no factual content suggesting that any of the individual
Defendants ever personally served him or exposed him to peanut butter or fish or
approved of or acquiesced in others doing so. In fact, the Complaint and its
attachments suggest just the opposite – that the Defendants did attempt to isolate
Plaintiff from such exposures and responded appropriately in every instance in which
Plaintiff was exposed despite these efforts. Nor has Plaintiff pleaded any factual basis
for a supervisory policy claim against Aramark.
Accordingly, Defendants’ Motion to Dismiss is GRANTED. Plaintiff’s federal
constitutional claims asserted under § 1983 (Count I) are DISMISSED WITH
PREJUDICE. Plaintiff’s state law claims asserting intentional infliction of emotional
36
distress (Count II) and negligence (Count III) are DISMISSED WITHOUT
PREJUDICE.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: March 28, 2019
37
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