Velthuysen #195606 v. Aramark Corporation, Inc. et al
Filing
26
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
CHRISTOPHER VELTHUYSEN,
Plaintiff,
Case No. 2:14-cv-192
v.
Honorable Gordon J. Quist
ARAMARK CORPORATION, INC. et al.,
Defendants.
____________________________________/
OPINION
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983.
The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation
Reform Act, PUB. L. NO . 104-134, 110 STAT . 1321 (1996), the Court is required to dismiss any
prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a
claim upon which relief can be granted, or seeks monetary relief from a defendant immune from
such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s
pro se amended complaint (docket #17) indulgently, see Haines v. Kerner, 404 U.S. 519, 520
(1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly
incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will
dismiss Plaintiff’s due process claims against Defendants Lesatz, Walbridge, DeLisle, Lettinosen
and Aramark Correctional Services, Inc. The Court, however, will serve Plaintiff’s Eighth
Amendment claims against Defendants Lesatz, Walbridge, DeLisle, Lettinosen and Aramark
Correctional Services, Inc.
Discussion
I.
Motion for Reconsideration
On October 24, 2014, after screening Plaintiff’s original complaint (docket #1) as
required by the Prison Litigation Reform Act, the Court issued an Opinion and Order for Partial
Dismissal and for Partial Service (docket ##11, 12). Plaintiff then filed a motion for reconsideration
(docket #14) asserting new allegations against certain Defendants. On December 4, 2014, the Court
ordered Plaintiff’s motion for reconsideration to be held in abeyance until Plaintiff filed an amended
complaint on the form. Because Plaintiff complied with the Court’s Order by filing an amended
complaint, the Court will grant Plaintiff’s motion for reconsideration to the extent Plaintiff seeks
to vacate this Court’s October 24, 2014 Opinion and Order for Partial Dismissal and for Partial
Service. The Court will also vacate the October 24, 2014 Opinion and Order for Partial Dismissal
and for Partial Service. Finally, the Court will screen Plaintiff’s amended complaint (docket #17)
herein.
II.
Factual allegations
Plaintiff presently is incarcerated at the Alger Correctional Facility but complains of
events that occurred at the Baraga Maximum Correctional Facility. In his pro se amended
complaint, Plaintiff sues Acting Deputy Warden Dan Lesatz, Food Service Supervisor Rob
Walbridge, Aramark Correctional Services, Inc. (Aramark), Acting Food Service Director Michael
DeLisle and Food Service Director Dan Lettinosen.
Plaintiff complains that the meals served by Aramark are nutritionally inadequate,
spoiled, undercooked, watered-down and have made Plaintiff violently ill. On December 18, 2013,
Plaintiff alleges that he was served spoiled hamburger meat, moldy bread, cold noodles and gravy,
and a bruised orange. Plaintiff requested another meal tray but he was told that the kitchen was
closed. On December 19, 2013, Plaintiff was served moldy bread, a rotten orange, cold spaghetti
-2-
noodles and spinach, and warm milk. When he requested a new tray, the Michigan Department of
Corrections (MDOC) denied his request because the kitchen was closed.
On December 20, 2013, Plaintiff filed a grievance regarding the December 18 and
19, 2013, food incidents. Plaintiff states that Defendant Walbridge denied Plaintiff’s Step I
grievance in an untimely response according to MDOC Policy Directive 03.02.130
“Prisoner/Parolee Grievances” (effective July 9, 2007). Plaintiff appealed the denial of his
grievance to Step II but Defendant Lesatz denied Plaintiff’s Step II appeal and refused to correct the
food problems. Plaintiff appealed the grievance to Step III but it was denied.
On August 12, 2014, Plaintiff, who works in the kitchen, noticed that the oatmeal was
watered down and several trays had moldy bread. Plaintiff also found that the food trays had
leftover food from the night before on them. Plaintiff called for new trays but the food on the
replacement trays had the same problems. On August 13, 2014, Plaintiff checked the food carts
again and found watered-down Ralston and jelly, and moldy toast. Although Plaintiff requested new
trays, food service never sent them. Plaintiff then filed another grievance about the food.
On August 19, 2014, Plaintiff wrote an urgent kite to healthcare services,
complaining of an upset stomach, frequent bowel movements and vomiting. Although Plaintiff was
placed on call-out to see a nurse, Plaintiff’s appointment was canceled. Plaintiff continued to be sick
with a high fever, upset stomach, nausea and bloody bowel movements for the next two days.
Plaintiff was finally seen by a nurse ten days after his kite.
In September 2014, Plaintiff, as block representative for his prison unit, wrote to
Food Service Director DeLisle and other MDOC personnel regarding the preparation, sanitation and
lack of quality of the food. When he did not hear from DeLisle, Plaintiff sent kites to Food Service
Supervisor Lettinosen, Assistant Deputy Warden Lesatz and DeLisle on September 14, 2014,
-3-
concerning the sanitation of the food trays, constant food shortages and the incorrect diet trays.
(Am. Compl., docket #17, Page ID#142.) Plaintiff never received a response.
On October 18, 2014, Plaintiff alleges that he was served a tray of chicken salad with
leftover gravy from a meal on October 12, 2014, bread, baked beans, spinach, a piece of cake
without any frosting and an orange drink. Plaintiff requested another tray but was told by a
corrections officer, whom Plaintiff does not name as a Defendant in his amended complaint, that if
Plaintiff agreed not to sue Aramark, Plaintiff would not be served a “messed[-]up” tray. (Id., Page
ID#144.) Plaintiff filed a grievance regarding the October 18, 2014 incident.
Plaintiff alleges that Defendant Aramark violated his Fifth, Eighth and Fourteenth
Amendment rights by providing rotten food to Plaintiff. (Id., Page ID#146.) Plaintiff also claims
that Defendants Lesatz, DeLisle, Walbridge and Lettinosen violated his Eighth Amendment rights
by failing to address the violations by Aramark and its employees. Plaintiff further alleges that
Defendants Lesatz, DeLisle, Walbridge and Lettinosen violated his Fifth and Fourteenth
Amendment rights by failing to respond to Plaintiff’s grievances, complaints and kites regarding the
food problems. (Id., Page ID#144.) Moreover, Plaintiff claims that Defendants Lesatz, DeLisle,
Walbridge and Lettinosen violated Plaintiff’s Fifth, Eighth and Fourteenth Amendment rights by
failing “in their duties concerning [Operating Procedure] 04.07.103,” “Response to Food Service
Sanitation/Inspection Reports,” and allowing employees to violate MDOC Policy Directive
04.07.102 “Food Quality Assurance” (effective date Aug. 15, 1994). (Id., Page ID#145.) Reading
Plaintiff’s amended complaint liberally, see Haines, 404 U.S. at 520, Plaintiff finally alleges that
Defendant Walbridge’s grievance response was untimely per MDOC Policy Directive 03.02.130.
Plaintiff requests declaratory and injunctive relief, and punitive damages.
-4-
III.
Failure to state a claim
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 Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While
a complaint need not contain detailed factual allegations, a plaintiff’s allegations must include more
than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.”). The court must determine whether the complaint contains “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. Although
the plausibility standard is not equivalent to a “‘probability requirement,’ . . . it asks for more than
a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – that the
pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting FED . R. CIV . P. 8(a)(2)); see also Hill
v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the Twombly/Iqbal plausibility
standard applies to dismissals of prisoner cases on initial review under 28 U.S.C. §§ 1915A(b)(1)
and 1915(e)(2)(B)(i)).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a
right secured by the federal Constitution or laws and must show that the deprivation was committed
by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr.
Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). Because § 1983 is a method for vindicating federal
-5-
rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify
the specific constitutional right allegedly infringed. Albright v. Oliver, 510 U.S. 266, 271 (1994).
A.
Walbridge, Lettinosen, DeLisle and Lesatz
Plaintiff claims that Defendants Lesatz, DeLisle, Walbridge and Lettinosen violated
his Eighth Amendment rights by failing to address the violations by Aramark and its employees.
Plaintiff also alleges that Defendants Lesatz, DeLisle, Walbridge and Lettinosen violated his Fifth
and Fourteenth Amendment rights by failing to respond to Plaintiff’s grievances, complaints and
kites regarding the food problems. Plaintiff further claims that Defendants Lesatz, DeLisle,
Walbridge and Lettinosen violated his Fifth, Eighth and Fourteenth Amendment rights by failing
to comply with MDOC Operating Procedure 04.07.103 and by allowing employees to violate
MDOC Policy Directive 04.07.102. Plaintiff finally complains that Defendant Walbridge filed an
untimely grievance response in violation of MDOC Policy Directive 03.02.130.
To the extent Plaintiff alleges that he was deprived of his due process rights by
Defendants Lesatz, DeLisle, Walbridge and Lettinosen for the lack of response to his complaints,
kites and grievances, and for failing to receive a timely grievance response, Plaintiff fails to state
a claim. Plaintiff has no due process right to file a prison grievance. The Sixth Circuit and other
circuit courts have held that there is no constitutionally protected due process right to an effective
prison grievance procedure. Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir. 2005);
Argue v. Hofmeyer, 80 F. App’x 427, 430 (6th Cir. 2003); Young v. Gundy, 30 F. App’x 568, 569-70
(6th Cir. 2002); Carpenter v. Wilkinson, No. 99-3562, 2000 WL 190054, at *2 (6th Cir. Feb. 7,
2000); see also Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Adams v. Rice, 40 F.3d
72, 75 (4th Cir. 1994). Michigan law does not create a liberty interest in the grievance procedure.
See Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Keenan v. Marker, 23 F. App’x 405, 407 (6th
-6-
Cir. 2001); Wynn v. Wolf, No. 93-2411, 1994 WL 105907, at *1 (6th Cir. Mar. 28, 1994). Moreover,
§ 1983 liability may not be imposed simply because a supervisor denied an administrative grievance
or failed to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999). Because Plaintiff has no liberty interest in the grievance process,
Defendants’ alleged conduct could not deprive him of due process.
Further, Plaintiff’s allegations that Defendants Lesatz, DeLisle, Walbridge and
Lettinosen violated MDOC Policy Directives and Operating Procedures fail to state a claim.
Defendants’ alleged failure to comply with an administrative rule or policy does not itself rise to the
level of a constitutional violation. Laney v. Farley, 501 F.3d 577, 581 n.2 (6th Cir. 2007); Brody
v. City of Mason, 250 F.3d 432, 437 (6th Cir. 2001); Smith v. Freland, 954 F.2d 343, 347-48 (6th
Cir. 1992); Barber v. City of Salem, 953 F.2d 232, 240 (6th Cir. 1992); McVeigh v. Bartlett, No. 9423347, 1995 WL 236687, at *1 (6th Cir. Apr. 21, 1995) (failure to follow policy directive does not
rise to the level of a constitutional violation because policy directive does not create a protectible
liberty interest). Section 1983 is addressed to remedying violations of federal law, not state law.
Lugar v. Edmondson Oil Co., 457 U.S. 922, 924 (1982); Laney, 501 F.3d at 580.
In summary, Plaintiff’s due process and state-law claims against Defendants Lesatz,
DeLisle, Walbridge and Lettinosen fail to state a claim. At this stage of the proceedings, however,
the Court will serve Plaintiff’s Eighth Amendment claims against Defendants Lesatz, DeLisle,
Walbridge and Lettinosen.
B.
Aramark
Plaintiff complains that Defendant Aramark violated his Fifth, Eighth and Fourteenth
Amendments rights by denying him food that was nutritional and edible. (Compl., docket #1, Page
ID#19.)
-7-
The Due Process Clause of the Fifth Amendment, which is applicable to the state
through the Fourteenth Amendment, provides that “[n]o person shall . . . be deprived of life, liberty,
or property, without due process of law.” This provision encompasses two forms of protection:
substantive due process and procedural due process. “A plaintiff asserting a substantive due process
claim faces a virtually insurmountable uphill struggle. He must show that the government conduct
in question was so reprehensible as to ‘shock the conscience’ of the court.” Rimmer–Bey v. Brown,
62 F.3d 789, 791 n.4 (6th Cir. 1995) (citing Rochin v. California, 342 U.S. 165 (1952)); Mertik v.
Blalock, 983 F.2d 1353, 1367–68 (6th Cir. 1993); see also Hampton v. Hobbs, 106 F.3d 1281, 1288
(6th Cir. 1997). For a procedural due process claim, the plaintiff must satisfy the following
elements: (1) a life, liberty, or property interest requiring protection under the Due Process Clause,
and (2) a deprivation of that interest (3) without adequate process. Women’s Med. Prof’l Corp. v.
Baird, 438 F.3d 595, 611 (6th Cir. 2006).
Plaintiff wholly fails to allege how his claim against Defendant Aramark regarding
the prison food implicates Plaintiff’s procedural due process rights. Conclusory allegations of
unconstitutional conduct without specific factual allegations fail to state a claim under § 1983. See
Iqbal, 556 U.S. at 678-69; Twombly, 550 U.S. at 555. Moreover, Plaintiff cannot demonstrate a
violation of substantive due process. “Where a particular [a]mendment provides an explicit textual
source of constitutional protection against a particular sort of government behavior, that
[a]mendment, not the more generalized notion of ‘substantive due process,’ must be the guide for
analyzing such a claim.” Albright, 510 U.S. at 266 (quoting Graham v. Connor, 490 U.S. 386, 395
(1989)) (holding that the Fourth Amendment, not substantive due process, provides the standard for
analyzing claims involving unreasonable search or seizure of free citizens, and the Eighth
Amendment provides the standard for such searches of prisoners)). If such an amendment exists,
-8-
the substantive due process claim is properly dismissed. Heike v. Guevara, 519 F. App’x 911, 923
(6th Cir. 2013). Because the Eighth Amendment is the proper vehicle for Plaintiff’s claim, Plaintiff
fails to state a procedural or substantive due process claim against Defendant Aramark.
In summary, Plaintiff fails to state due process claims against Defendant Aramark.
However, the Court will serve Plaintiff’s Eighth Amendment claim against Defendant Aramark.
C.
Service
At this juncture, the Court has determined that Plaintiff’s allegations against
Defendants Lesatz, DeLisle, Walbridge, Lettinosen and Aramark are sufficient to state an Eighth
Amendment claim.
Conclusion
Having conducted the review required by the Prison Litigation Reform Act, the Court
determines that Plaintiff’s due process claims against Defendants Lesatz, Walbridge, DeLisle,
Lettinosen and Aramark Correctional Services, Inc. will be dismissed for failure to state a claim
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court will serve
Plaintiff’s Eighth Amendment claim against Defendants Lesatz, Walbridge, DeLisle, Lettinosen and
Aramark Correctional Services, Inc. The Court will also grant Plaintiff’s motion for reconsideration
(docket #14) and vacate the Court’s October 24, 2014 Opinion and Order regarding Partial Service
(docket ##11, 12).
An Order consistent with this Opinion will be entered.
Dated: April 29, 2015
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
-9-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?