Hope v. Berg et al

Filing 5

Memorandum Opinion and Order for the reasons set forth within plaintiff's motion to proceed in forma pauperis is granted. This action shall proceed solely on Hope's Eighth Amendment claims against McCutcheon and Shreve. The Clerk's Office is directed to forward the appropriate documents to the U.S. Marshal for service of process and shall include a copy of this order in the documents to be served upon McCutcheon and Shreve. Judge Sara Lioi on 1/7/2022. (E,CK)

Case: 5:21-cv-01308-SL Doc #: 5 Filed: 01/07/22 1 of 11. PageID #: 56

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

VALERIE HOPE,

PLAINTIFF,
vs.
ANGELA BERG, et al.,

DEFENDANTS.

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CASE NO. 5:21-cv-1308

JUDGE SARA LIOI
MEMORANDUM OPINION
AND ORDER

Pro se plaintiff Valerie Hope (fka Valerie Ziemba) filed this action against Summit County
Jail Deputy Angela Berg, Summit County Jail Deputy Stephanie Bowens, Summit County Jail
Inmate Supervisor Rebecca McCutcheon, Summit County Jail Kitchen Supervisor Christine
Shreve, Summit County Jail Deputy Steven Scofield, Summit County Probation Officer Zachary
Gilgenbach, Summit County Jail Contract Food Service Provider Aramark, Medical Service
Providers for Summit County Jail, Summit County Jail Deputy Hadley Hickman, Summit County
Jail Deputy Alexandria Hicks, Summit County Jail Chief Inspector Shane Barker, Summit County
Jail Deputy Jacqwelynn Wyman, and Summit County Jail Deputy Calhoun.1 In the complaint,
Hope alleges she was repeatedly served meals that contained ingredients to which she has an
allergy. She asserts a claim for violation of the Americans with Disabilities Act as well as claims
under 42 U.S.C. § 1983 for Eighth Amendment violations. She seeks monetary damages.

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Plaintiff suggested in her complaint that Sheriff Barry may be a defendant; however, she did not include him in the
case caption, did not supply marshal forms and summonses for Barry and did not include factual allegations in the
pleading pertaining to Barry. The Court will therefore not consider Barry as a defendant.

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Hope also filed an application to proceed in forma pauperis. (Doc. No. 2.) That application
is granted.
I.

Background
Hope was incarcerated in the Summit County Jail on a three-month sentence from April 9,

2019 to July 3, 2019. She indicates that she disclosed her allergy to gluten, soy, and corn to jail
staff at booking. She contends she was nevertheless served foods that contained these items. She
alleges that she made several requests to the medical department to give her a diet that was within
her restrictions but was told it could take weeks for her medical records to be forwarded by her
physicians. Hope states she contacted Shreve, the food service supervisor, informing her that items
on her tray were not gluten, soy, and corn free and requesting a list of the ingredients of the food
on her trays. Shreve denied this request saying that, if she provided Hope with this information,
she would have to provide it to all the inmates. Hope contends that each time she received a nonconforming tray, she notified that deputy on duty. She states that the deputies refused to call the
kitchen for corrected trays.
Hope alleges she then kited McCutcheon, the inmate supervisor, and asked for her help in
resolving the problem. Hope indicates that McCutcheon arranged a meeting between her,
McCutcheon, and Shreve, and Hope contends that at this meeting Hope suggested that she be
served eggs. She alleges Shreve told her Aramark would not pay for eggs.
Hope states that, due to her weight loss, the medical department intervened. On May 27,
2019, medical personnel arranged another meeting with plaintiff, McCutcheon, and Shreve. At
this meeting, they developed a list of foods plaintiff could safely eat. Hope contends they agreed
she was to be served two eggs and bananas for breakfast, and a beef patty or fish with vegetables
for lunch and dinner. Hope was also admonished to cease contact with the kitchen staff.
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Hope alleges that even after this meeting, she was served foods that were not on the list she
provided to Shreve. On June 14, 2019, she complained to Deputy Calhoun about a non-conforming
tray. She states he told her in a stern voice to stop complaining to the kitchen staff. Hope, however,
began to send kites to the kitchen again, complaining about the meals.
On June 13, 2019, Hope reported to the medical department for another weight check. She
spoke with the medical supervisor who indicated she would speak to Shreve and McCutcheon
about staying within Hope’s dietary restrictions.
Hope alleges Hicks told her she would get her breakfast tray last because she was not going
to play games with Hope any longer. She contends she was not allowed extra bananas when she
requested them, even though other inmates could ask for extra food.
Hope alleges she held the job of a cleaner. While performing her duties, she encountered a
male inmate kitchen worker. She talked to the male inmate and asked him to make sure her food
trays were within her dietary limits. Bowens later confronted Hope about that conversation. Hope
states she told Bowens all that she and the inmate discussed, but Bowens told her that she had lost
her job as a cleaner. She states Bowens also discussed her medical history in the presence of other
deputies.
Hope indicates that, days before her release, she requested another meeting with
McCutcheon to discuss her food trays. She claims McCutcheon told her she would get back to her.
Hope was transferred to a halfway house on July 3, 2019. She states that, by the time of her transfer,
she had lost thirty pounds.
Hope asserts two claims for relief. First, she claims the defendants violated her rights under
the Americans with Disabilities Act by failing to provide her with a proper diet. Second, she asserts

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that the defendants were deliberately indifferent to her medical needs and subjected her to cruel
and unusual punishment. She seeks monetary damages.
II.

Standard of Review
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365,

102 S. Ct. 700, 70 L. Ed. 2d 551 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520, 92
S. Ct. 594, 30 L. Ed. 2d 652 (1972), the Court is required to dismiss an in forma pauperis action
under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks
an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed. 2d
338 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99
F.3d 194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised
on an indisputably meritless legal theory or when the factual contentions are clearly baseless.
Neitzke, 490 U.S. at 327. A cause of action fails to state a claim upon which relief may be granted
when it lacks plausibility in the complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564, 127
S. Ct. 1955, 167 L. Ed. 2d 929 (2007).
A pleading must contain a short and plain statement of the claim showing that the pleader
is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 677–78, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009). The factual allegations in the pleading must be sufficient to raise the right to relief above
the speculative level on the assumption that all the allegations in the complaint are true. Twombly,
550 U.S. at 555. The plaintiff is not required to include detailed factual allegations, but must
provide more than an unadorned, the defendant unlawfully harmed me accusation. Iqbal, 556 U.S.
at 678. A pleading that offers legal conclusions or a simple recitation of the elements of a cause of
action will not meet this pleading standard. Id. In reviewing a complaint, the Court must construe

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the pleading in the light most favorable to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151
F.3d 559, 561 (6th Cir. 1998).
III.

Analysis
As an initial matter, Hope does not allege facts connecting Berg, Scofield, Gilenbach,

Hickman, Barker, or Wyman to the actions described in the complaint. To meet federal notice
pleading requirements, the complaint must give the defendants fair notice of what the plaintiff’s
legal claims against them are and the factual grounds upon which they rest. Bassett v. Nat’l
Collegiate Athletic Ass’n, 528 F.3d 426, 437 (6th Cir. 2008). For Berg, Scofield, Hickman, and
Wyman, it is not sufficient to identify them as deputies who work in the unit and then offer only
blanket allegations that deputies would not assist her to get new food trays. To hold them liable,
Hope must allege how each was personally involved in the activities that form the basis of the
alleged behavior. Rizzo v. Goode, 423 U.S. 362, 371, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976);
Mullins v. Hainesworth, No. 95-3186, 1995 WL 559381, at *1 (6th Cir. Sept. 20, 1995). Likewise,
there are no allegations that can be linked in any way to probation officer Gilgenbach or Chief
Inspector Barker. The claims as against Berg, Scofield, Gilgenbach, Hickman, Barker, and Wyman
are dismissed.
Similarly, Medical Service Providers is not a proper defendant. The medical department of
a county jail is not sui juris, meaning it is not a separate legal entity that can sue or be sued. See
Carmichael v. City of Cleveland, 571 F. App’x 426, 435 (6th Cir. 2014) (finding that “under Ohio
law, a county sheriff’s office is not a legal entity that is capable of being sued”) (citations omitted);
Black v. Montgomery Cnty. Common Pleas Ct., No. 3:18-cv-123, 2018 WL 2473560, at *1 (S.D.
Ohio June 4, 2018) (finding Common Pleas Court was not sui juris). The medical department is

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merely a subunit of the Summit County Jail, which itself is a subunit of the county. The claims
against Medical Service Providers fail as a matter of law.
Hope first asserts claims under the Americans with Disabilities Act (“ADA”). The ADA
forbids discrimination against persons with disabilities in three major areas of public life: (1)
employment, which is covered by Title I of the statute; (2) public services, programs, and activities,
which are the subject of Title II; and (3) public accommodations, which are covered by Title III.
Tennessee v. Lane, 541 U.S. 509, 516–17, 124 S. Ct. 509, 158 L. Ed. 2d 820 (2004).
Title I is clearly inapplicable here. Title II of the ADA prohibits a public entity from
discriminating against disabled individuals and states that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination by any
such entity.” 42 U.S.C. § 12132. The term “public entity” is defined, in relevant part, as “any State
or local government[.]” 42 U.S.C. § 12131(1)(A). Title III applies only to private entities operating
public accommodations and services. It expressly does not apply to public entities such as cities,
counties, and states, or to the departments and agencies of those public entities. See 42 U.S.C. §§
12131(1), 12181(6); see also Watson v. Cobb, No. 14-cv-1034, 2015 WL 502314, at *3 n.7 (W.D.
Tenn. Feb. 5, 2015) (Title III “expressly does not apply to public entities such as cities, counties,
and states or to the departments and agencies thereof.”); Collazo v. Corr. Corp. of Am., No. 4:11cv-1424, 2011 WL 6012425, at *4 (N.D. Ohio Nov. 30, 2011) (“A jail or prison facility does not
constitute a place of ‘public accommodation’ as defined in the applicable statutory provisions.”);
Wattleton v. Doe, No. 10-cv-11969, 2010 WL 5283287, at *2 (D. Mass. Dec. 14, 2010)
(concluding that federal prison does not constitute a place of public accommodation under Title
III of ADA).
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Because the actions occurred in the Summit County Jail, Title II is applicable. But Title II
of the ADA applies only to State or local governments. It does not provide a cause of action against
public employees or their supervisors, or to private entities. Williams v. McLemore, 247 F. App’x
1, 8 (6th Cir. 2007); Lee v. Mich. Parole Bd., 104 F. App’x 490, 493 (6th Cir. 2004). Hope’s ADA
claims are dismissed as against Bowens, McCutcheon, Aramark, Hicks, Calhoun, and Shreve. As
no other defendants remain against whom this claim can be asserted, Hope’s ADA claim is
dismissed.
Moreover, even if Hope had stated this claim against a proper defendant, failure to provide
Hope with a gluten free diet in response to her gluten allergy does not fall within the purview of
the ADA. Dietary accommodation for a medical condition is considered medical treatment. The
ADA provides relief for exclusion from a prison service, program or activity, or for discrimination
based on disability; it does not provide relief for alleged incompetent medical treatment. Carrion
v. Wilkinson, 309 F. Supp. 2d 1007, 1016 (N.D. Ohio 2004) (granting motion to dismiss because
claims that prisoner with diabetes was denied a proper diet is medical treatment and not the type
of claim that the ADA was intended to cover); Kensu v. Rapelje, No. 12-cv-11877, 2015 WL
5302816, at *4 (E.D. Mich. Sept. 10, 2015) (failure to provide a gluten free diet to an inmate with
a gluten allergy is considered to be a claim for inadequate medical care, which is not covered by
the ADA).
Finally, even if the ADA did provide a substantive cause of action to Hope, she failed to
allege sufficient facts to state a claim under this statute. Under Title II of the ADA (42 U.S.C. §
12132), Hope must establish that she has a disability. The ADA defines a disability as a physical
or mental impairment that substantially limits one or more of the major life activities of the
individual. According to the ADA regulations, an individual is “substantially limited” in
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performing a major life activity if she is either: (1) unable to perform a major life activity that the
average person in the general population can perform (e.g., walking), or (2) significantly restricted
as to the condition, manner, or duration under which she can perform a particular major life activity
as compared to the condition, manner, or duration under which the average person in the general
population can perform that same major life activity (e.g., being able to walk only for brief periods
of time). 29 C.F.R. § 1630.2(j)(1)(i)-(ii). A physical impairment, does not, per se, qualify as a
disability under the ADA. See Salim v. MGM Grand Detriot, L.L.C., 106 F. App’x 454, 459 (6th
Cir. 2004) (citing Nawrot v. CPC Int'l, 277 F.3d 896, 903 (7th Cir. 2002)). To state a claim under
the ADA, the plaintiff must show more than a physical impairment; she must allege and
demonstrate that the identified impairment renders her unable to perform a major life activity or
significantly restricts the condition, manner or duration under which she can perform a major life
activity. 42 U.S.C. § 12012(2); Salim, 106 F. App’x at 459. Hope has not alleged facts suggesting
that a restriction in food choices to avoid allergens significantly restricts or renders her completely
unable to perform major life activities.
Hope also asserts claims for violation of her Eighth Amendment rights. The Eighth
Amendment imposes a constitutional limitation on the power of the states to punish those
convicted of crimes. Punishment may not be “barbarous,” nor may it contravene society’s
“evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 346, 101 S. Ct. 2392, 69 L.
Ed. 2d 59 (1981). The Eighth Amendment protects inmates by requiring that “prison officials
. . . ensure that inmates receive adequate food, clothing, shelter, and medical care, and . . . ‘take
reasonable measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825,
833, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–
27, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984)). This, however, does not mandate that a prisoner be
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free from discomfort or inconvenience during his or her incarceration. Ivey v. Wilson, 832 F.2d
950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346). Prisoners are not entitled
to unfettered access to the medical treatment of their choice, see Hudson v. McMillian, 503 U.S.
1, 9, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992), nor can they “expect the amenities, conveniences
and services of a good hotel.” Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988); see
Thaddeus-X v. Blatter,175 F.3d 378, 405 (6th Cir. 1999). In sum, the Eighth Amendment affords
the constitutional minimum protection against conditions of confinement which constitute health
threats, but does not address those conditions which cause the prisoner to feel merely
uncomfortable or which cause aggravation or annoyance. Hudson, 503 U.S. at 9–10 (requiring
extreme or grave deprivation).
In Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991), the
Supreme Court set forth a framework for courts to use when deciding whether certain conditions
of confinement constitute cruel and unusual punishment prohibited by the Eighth Amendment. A
plaintiff must first plead facts which, if true, establish that a sufficiently serious deprivation has
occurred. Id. Seriousness is measured in response to “contemporary standards of decency.”
Hudson, 503 U.S. at 8. Routine discomforts of prison life do not suffice. Id. Only deliberate
indifference to serious medical needs or extreme deprivations regarding the conditions of
confinement will implicate the protections of the Eighth Amendment. Id. at 9. A plaintiff must
also establish a subjective element showing the prison officials acted with a sufficiently culpable
state of mind. Id. Deliberate indifference is characterized by obduracy or wantonness, not
inadvertence or good faith error. Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 89 L. Ed.
2d 251 (1986). Liability cannot be predicated solely on negligence. Id. A prison official violates

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the Eighth Amendment only when both the objective and subjective requirements are met. Farmer
v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).
Here, Hope’s allegation that she repeatedly was denied food within her dietary restrictions
arguably qualifies as an objectively serious deprivation. Furthermore, she contends that Shreve
and McCutcheon met with her several times but failed to correct the situation. On its face, the
complaint states a plausible claim for relief against Shreve and McCutcheon.
The same cannot be said for Hope’s allegations against the other remaining defendants.
Hope alleges that Bowens discussed her medical condition in the presence of other deputies. She
also contends Bowens questioned her about a conversation Hope had with a male inmate and
informed Hope that she had lost her job as a cleaner. Plaintiff alleges Hicks told her she would get
her tray last because she complained too often. She also alleges Calhoun told her to stop
complaining about the food trays. These actions are not sufficiently serious to state a claim upon
which relief may be granted. See Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.1987) (verbal
harassment and offensive comments do not state an Eighth Amendment claim).

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IV.

Conclusion

For all the foregoing reasons, Hope’s application to proceed in forma pauperis (Doc. No.
2) is granted.
Hope’s claims under the Americans with Disabilities Act are dismissed pursuant to 28
U.S.C. § 1915(e). Hope’s Eighth Amendment claims are dismissed against Berg, Bowens,
Scofield, Gilgenbach, Aramark, Medical Service Providers, Hickman, Hicks, Barker, Wyman, and
Calhoun pursuant to 28 U.S.C. § 1915(e). The Court expressly declines certification of an
immediate appeal under Fed. R. Civ. P. 54(b). Should Hope nonetheless attempt an immediate
appeal, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that such appeal from this decision
could not be taken in good faith.
This action shall proceed solely on Hope’s Eighth Amendment claims against McCutcheon
and Shreve. The Clerk’s Office is directed to forward the appropriate documents to the U.S.
Marshal for service of process and shall include a copy of this order in the documents to be served
upon McCutcheon and Shreve.

IT IS SO ORDERED.
Dated: January 7, 2022
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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