Pagan et al v. Westchester County et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 90 Report and Recommendations, 65 Motion to Dismiss, filed by Kevin Cherveko, Westchester County, 61 Motion to Dismiss filed by Aramark Correctional Services LLC, Donna Blackmon, Joseph Loughran. Fo r the foregoing reasons, the Court adopts the Report in full. The Clerk is directed to terminate the motions pending at Dkt. 61 and Dkt. 65. The case is referred back to Magistrate Judge Netburn for further proceedings. (Signed by Judge Paul A. Engelmayer on 3/12/2014) (cd)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WILSON PAGAN, STEVEN LEWIS, YUSUF DIXON, :
MICHAEL STEVENS, QUIANE WILLIAMS,
SANTIAGO GOMEZ, GUARIO VARGAS, GERALD
CHARLES, CHRISTOPHER GLIVENS, WILLIAM P.
JENKINS, PEDRO LLERANDEZ, ADEM ARICI,
JEROME BARNETT, JOSEPH DUSHOCK, and
WESTCHESTER COUNTY, KEVIN CHEVERKO,
ARAMARK CORRECTIONAL SERVICES LLC,
JOSEPH LOUGHRAN, and DONNA BLACKMAN,
12 Civ. 7669 (PAE) (JCF)
PAUL A. ENGELMAYER, District Judge:
Several former inmates at Westchester County Jail (the “Jail”), proceeding pro se, bring
this action against Westchester County (the “County”); Kevin Cheverko, the Commissioner of
Westchester County Department of Corrections (“WCDOC”); 1 Aramark Correctional Services
LLC (“Aramark”); Joseph Loughran, the Director of Food Services for Aramark; and Donna
Blackman, Aramark’s Commissary Supervisor 2 (collectively, “Defendants”). Plaintiffs bring
claims pursuant to 42 U.S.C. § 1983 for, inter alia, violations of their First and Eighth
Amendment rights. Plaintiffs also bring claims under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §§ 1961−68, and under New York state law. Plaintiffs
The Court will refer to the County and Cheverko, collectively, as the “County Defendants.”
The Court will refer to Aramark, Loughran, and Blackman, collectively, as the “Aramark
allege, inter alia, that they received undercooked or rotted meals on trays containing mold or
bacteria in the Jail, and that, as a result of the substandard food provided by the Jail, they were
forced to buy overpriced food from the Commissary and/or to change their designated religious
affiliations in order to obtain proper meals.
On August 13, 2013, the County Defendants and the Aramark Defendants moved to
dismiss the Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
Before the Court is the February 3, 2014 Report and Recommendation of Magistrate Judge Sarah
Netburn (the “Report”), recommending that the Court grant the motions in part and deny them in
part. For the reasons that follow, the Court adopts the Report in full.
Wilson Pagan, Steven Lewis, Yusuf Dixon, Michael Stevens, Quiane Williams, Santiago
Gomez, Guario Vargas, Gerald Charles, Christopher Glivens, William P. Jenkins, Pedro
Llerandez, Adem Arici, Jerome Barnett, Joseph Dushock, and Armando Sanchez (collectively,
“Plaintiffs”), are former inmates of the Jail. Each arrived at the Jail between May 13, 2010 and
July 18, 2012, and has since been moved or released.
In 1996, Westchester County contracted with Aramark to provide food services at the
Jail. Aramark was responsible for providing three meals a day to inmates, including Plaintiffs.
On one or more occasions, Aramark served Plaintiffs undercooked or rotted meals, served on
trays containing mold or bacteria. Specifically, Plaintiffs were served salads containing rotted
The Court’s summary of the facts of this case is drawn from the detailed account of the facts
provided in the Report, to which the parties do not object. In considering the motions to dismiss,
the Court, like Judge Netburn, accepts as true all facts alleged in the Second Amended
lettuce, vegetables with insects on them, and undercooked meat. As a result, Plaintiffs
experienced severe stomach pains, nausea, vomiting, fever, headaches, diarrhea, weight loss,
fatigue, dizziness, dehydration, and stretch marks. Aramark also served Plaintiffs “small” or
“minimal” portions of food. Aramark was informed of these deficiencies, but failed to correct
them. Commissioner Cheverko, who holds daily staff meetings, including with Loughran and
Blackman, was aware of the inmates’ complaints regarding the food.
As part of its role in providing food services at the Jail, Aramark provided special meals
for inmates with religious dietary restrictions, including, but not limited to, kosher meals for
Jewish inmates and halal meals for Muslim inmates. Plaintiffs Pagan and Lewis, both of whom
are Catholic, switched their formal religious affiliation to Jewish in order to receive kosher
meals, which they believed to be more sanitary. As a result, they were no longer permitted to
attend Catholic mass at the Jail. Plaintiffs Dixon, Arici, Williams, Stevens, and Charles, who are
Muslim, requested halal meals. Dixon, Williams, and Stevens received halal meals that were
undercooked, rotted, or otherwise unsanitary; when they complained, they were offered bologna
and cheese sandwiches instead (although bologna does not conform to Muslim dietary law).
Dixon, as well as Charles, did not receive halal meals as often as Jewish inmates received kosher
meals. Initially, Arici was not served his meals on a religious meal tray; his request for a
conforming meal and tray was not honored for approximately one week. Once Arici began
receiving the appropriate meal and tray, he became aware that an inmate worker was spitting in
his halal food, from which he fell ill; thereafter, he switched to meals that did not conform to
Muslim dietary restrictions.
Gomez and Arici both filed formal grievances regarding the food quality, to no avail.
Several other plaintiffs “attempted” to file grievances as well. Pagan, Dixon, Lewis, Williams,
Stevens, Vargas, Charles, and Sanchez went to various individuals at the Jail, including
correctional officers and Sergeants, all of whom refused to accept their grievances. In many
instances, the inmates were told, erroneously, that food-related complaints were not “grievable
issues,” or that it was Aramark’s problem, not the Jail’s. Glivens, Llerandez, Barnett, Jenkins,
and Dushock also failed to comply with formal WCDOC grievance procedures, but do not
identify any specific thwarted attempts to file grievances. Plaintiffs indicate that there was a
general atmosphere of hostility at the Jail aimed at prisoners who filed multiple grievances.
Aramark was also responsible for running the Commissary, from which inmates could
purchase food and other items. A website (the “iCare site”) was also created to allow friends and
families to purchase items from the Commissary for inmates, for which they were charged a fivedollar shipping and handling fee (despite the fact that the items were not actually shipped
anywhere). To supplement the rotten or otherwise inadequate meals provided to them by
Aramark in the ordinary course, Plaintiffs bought food at the Commissary, purportedly at
“jacked up prices.” Plaintiffs’ families would also purchase items from the Commissary for
them via the iCare site. The revenues from the Commissary were shared by Aramark and
On October 12, 2012, Plaintiffs, proceeding pro se, filed the Complaint. Dkt. 15. On
February 4, 2013, Plaintiffs filed an Amended Complaint. Dkt. 26. On July 23, 2013, Plaintiffs
filed a Second Amended Complaint. Dkt. 58. In the Second Amended Complaint, Plaintiffs
allege, inter alia, that Defendants violated their Eighth Amendment rights in (1) providing them
with substandard food, and failing to correct the problem once it was brought to their attention;
(2) providing them with meals of insufficient size; and (3) forcing them to buy foods from the
Commissary at an inflated price to compensate for the inadequate meals. Plaintiffs further allege
that Defendants violated their First Amendment rights by forcing some inmates to change their
designated religious affiliations in order to receive sanitary kosher meals, and depriving Muslim
inmates with sanitary meals that conformed to their religious dietary restrictions. Plaintiffs also
bring RICO claims relating to Defendants’ alleged price gouging in connection with goods sold
in the Commissary, as well as claims under state law for Defendants’ alleged violation of a
settlement agreement reached with inmates who had brought similar claims in an earlier case.
On August 13, 2013, Defendants filed motions to dismiss pursuant to Rule 12(b)(6), Dkt.
61, 65, and supporting memoranda of law, Dkt. 63 (“Aramark Def. Br.”), 71 (“County Def.
Br.”). On August 27, 2013, the Court referred the case to Magistrate Judge Netburn for general
pretrial supervision and for the preparation of a Report & Recommendation on the pending
motions. Dkt. 75. On September 11, 2013, Gomez filed papers in opposition to the motions.
Dkt. 79, 80. On October 8, 2013, the Aramark Defendants submitted a reply, Dkt. 82, and on
October 9, 2013, the County Defendants did the same, Dkt. 84.
On February 3, 2014, Judge Netburn issued the Report, recommending that Defendants’
motions to dismiss be granted in part and denied in part. Dkt. 90. Specifically, the Report
recommended dismissing (1) the claims raised by Plaintiffs Glivens, Llerandez, Barnett, Jenkins,
and Dushock in their entirety for failure to exhaust their administrative remedies, as required by
the Prison Litigation Reform Act (“PLRA”); (2) the claims against Defendant Blackman in their
entirety for failing to allege personal involvement; (3) the Eighth Amendment claims to the
extent they related to food portions and high commissary prices; (4) the RICO claims in their
entirety; and (5) the state law claims in their entirety, on the ground that violation of a settlement
agreement is not a cognizable claim. In all other respects, the Report recommended that
Defendants’ motions to dismiss be denied. Judge Netburn determined that Gomez and Arici had
exhausted their administrative remedies; that Pagan, Dixon, Lewis, Williams, Stevens, Vargas,
Charles, and Sanchez had fairly alleged that their failure to exhaust is excused under the PLRA;
that plaintiffs fairly pled Eighth Amendment violations with respect to the allegation of
undercooked or otherwise unsanitary meals; and that Pagan, Lewis, Dixon, Williams, Stevens,
and Arici stated cognizable First Amendment claims.
On February 24, 2014, the Aramark Defendants and the County Defendants both filed
objections to the Report. Dkt. 93 (“Aramark Obj.”), 94 (“County Obj.”). On March 6, 2014,
Gomez filed an affidavit in opposition to defendants’ objections. Dkt. 95.
Standard of Review
In reviewing a Report and Recommendation, a district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C). When specific objections are made, “[t]he district judge must determine
de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed.
R. Civ. P. 72(b)(3); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). However,
when the objections simply reiterate previous arguments or make only conclusory statements, the
Court should review the report for clear error. See Genao v. United States, No. 08 Civ. 9313
(RO), 2011 WL 924202, at *1 (S.D.N.Y. Mar. 16, 2011); Kirk v. Burge, 646 F. Supp. 2d 534,
539 (S.D.N.Y. 2009) (collecting cases).
Objections to the Report
Defendants raise several objections to the Report. The Court will address each in turn.
As a threshold matter, the County Defendants argue that all plaintiffs, save Gomez, failed
to respond to the motion to dismiss, and thus should be treated as having abandoned their claims.
County Obj. 3−4. However, neither the County Defendants nor the Aramark Defendants raised
this issue before Judge Netburn. Thus, the Court declines to consider it here. See Grant v.
Bradt, No. 10 Civ. 394 (RJS), 2012 WL 3764548, at *4 (S.D.N.Y. Aug. 30, 2012) (“Generally,
courts do not consider new arguments and new evidence raised in objections to a magistrate
judge’s report and recommendation that were not raised, and thus were not considered, by the
magistrate judge.”) (internal quotation marks and citation omitted); Robinson v. Keane, No. 92
Civ. 6090 (CSH), 1999 WL 459811, at *4 (S.D.N.Y. June 29, 1999) (“These issues were not
raised before the Magistrate Judge and therefore were not addressed by him; accordingly, they
may not properly be deemed ‘objections’ to any finding or recommendation made in the Report
and Recommendation. . . . An objecting party may not raise new arguments that were not made
before the Magistrate Judge.”).
The Aramark Defendants and the County Defendants raise several other objections to
recommendations made in the Report, which substantially overlap. First, they argue that Pagan,
Lewis, Dixon, Stevens, Williams, Vargas, Charles, and Sanchez do not plausibly allege that they
followed WCDOC’s formal grievance procedures, or that such procedures were unavailable to
them; thus, Defendants argue, they are not excused from the PLRA’s exhaustion requirement.
See Aramark Obj. 1−4; County Obj. 4−8. This objection, however, merely restates identical
arguments made before Judge Netburn. See Aramark Def. Br. 6−7; County Def. Br. 7−11. The
Report considered these arguments, and concluded that the allegations in the Second Amended
Complaint were sufficient to plead an excuse for failure to exhaust, citing several cases where
similar allegations (i.e., that plaintiffs were thwarted in their attempts to file grievances) were
deemed sufficient. See Report 16−17. The Court finds no clear error in this conclusion.
Defendants next object that the Second Amended Complaint fails to plausibly allege
violations of the Eighth or First Amendments. Specifically, they argue that (1) unsubstantiated
allegations of undercooked food or unsanitary meal trays do not satisfy the standard for cruel and
unusual punishment (i.e., plaintiffs fail to allege the objective component of an Eighth
Amendment claim); (2) Jail officials investigated plaintiffs’ complaints, and thus Defendants
could not have acted with deliberate indifference (i.e., plaintiffs fail to allege the subjective
component of an Eighth Amendment claim), see Aramark Obj. 4−8; County Obj. 9−14; and
(3) allegations of being forced to choose between receiving kosher meals and attending the
religious service of one’s choice cannot substantiate a First Amendment claim, see Aramark Obj.
8−12; County Obj. 14−17. Defendants further object to the Report’s conclusion that the Second
Amendment Complaint plausibly alleges the personal involvement of the individual defendants
in these constitutional violations. See Aramark Obj. 12−14; County Obj. 17−18. These
objections too are duplicative of arguments previously raised and addressed. See Aramark Def.
Br. 13−19; County Def. Br. 11−13, 16−17. Indeed, the Report considered each of these
arguments in great detail, and determined that the pro se plaintiffs had alleged sufficient facts to
survive a motion to dismiss. See Report 21−24 (objective component of Eighth Amendment
violation); id. at 24−25 (subjective component of Eighth Amendment violation); id. at 26−28
(First Amendment violation); id. at 29−32 (personal involvement of individual defendants). The
Court reviews this conclusion for clear error, and finds none.
Separately, the Aramark Defendants object to the Report’s conclusion that the Second
Amended Complaint states a § 1983 claim, arguing that Aramark was not acting under color of
state law, and that plaintiffs fail to plausibly allege a policy or practice sufficient to establish a
Monell claim. Aramark made identical arguments to Judge Netburn. See Aramark Br. 8-12,
19-20. The Report persuasively explains that the County has a duty to provide food to inmates
at the Jail and contracted with Aramark to fulfill this duty, and thus Aramark is serving a public
function by providing food services to inmates at the Jail. See Report 34-35. The Report cites
several cases supporting this understanding. See id. at 36. The Report also explains that the
Second Amended Complaint's allegations of failure to train and failure to supervise suffice to
plead a policy or practice for purposes of a § 1983 claim. See id. at 38-39. This analysis is
thorough and well-reasoned. The Court tinds no error, let alone clear error, in the Report's
For the foregoing reasons, the Court adopts the Report in full. The Clerk is directed to
terminate the motions pending at Dkt. 61 and Dkt. 65. The case is referred back to Magistrate
Judge Netburn for further proceedings.
United States District Judge
Dated: March 12,2014
New York, New Yark
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