LeBron v. Aramarck Food Company et al

Filing 10

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 8/6/2014. 2 Plaintiff's MOTION for Leave to Proceed in forma pauperis GRANTED. Action DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a c laim; Clerk of Court to document that inmate brought action that was dismissed for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1); Clerk of Court to document that inmate has incurred a "strike" under 28 U.S.C. §1915(g). Wisconsin Dept. of Corrections to collect $347.33 balance of filing fee from plaintiff's prison trust account. Court certifies any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless plaintiff offers bonafide arguments supporting appeal. (cc: all counsel, via US mail to Orlando LeBron and Warden at Dodge Correctional Institution, Corey Finkelmeyer at Wis. DOJ)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ORLANDO LEBRON, SR.,
Plaintiff,

-vs-

Case No.

13-CV-1336

ARAMARK FOOD COMPANY,
R. CROWE, and UNKNOWN,
Defendants.

DECISION AND ORDER

The plaintiff, Orlando LeBron, Sr., filed a pro se complaint under 42 U.S.C.
§ 1983, alleging that his civil rights were violated when he was a probation detainee at the
Brown County Jail. This matter comes before the Court on the plaintiff's motion for leave
to proceed in forma pauperis and for screening of the plaintiff’s complaint.
The plaintiff has been assessed and paid an initial partial filing fee of $2.67.
His motion for leave to proceed in forma pauperis will be granted.
The Court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §
1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised
claims that are legally "frivolous or malicious," that fail to state a claim upon which relief
may be granted, or that seek monetary relief from a defendant who is immune from such

relief. 28 U.S.C. § 1915A(b).
A claim is legally frivolous when it lacks an arguable basis either in law or in
fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court may,
therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal
theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious,” although sometimes treated as a synonym for “frivolous,” “is more usefully
construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir.
2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system, the
plaintiff is required to provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not necessary for the plaintiff to plead
specific facts and his statement need only “give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that
offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action
will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
555). To state a claim, a complaint must contain sufficient factual matter, accepted as true,
“that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts should follow the
principles set forth in Twombly by first, “identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations. Id. If there are well-pleaded factual
allegations, the court must, second, “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that:
1) he was deprived of a right secured by the Constitution or laws of the United States; and
2) the deprivation was visited upon him by a person or persons acting under color of state
law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez
v. Toledo, 446 U.S. 635, 640 (1980). The Court is obliged to give the plaintiff’s pro se
allegations, “however inartfully pleaded,” a liberal construction. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
In July 2013, the plaintiff was arrested for a probation violation and booked
into the Brown County Jail. During his first week there, he was taken to the hospital twice
for abdominal pains and diagnosed with a bowel obstruction and walking pneumonia. The

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plaintiff had problems with the food that Aramark served to inmates at the Brown County
Jail. Upon returning to the Jail, the plaintiff was placed on a special diet due to his medical
needs. Although the plaintiff is Muslim, he requested a kosher diet and was informed that
only the Health Services Unit (HSU) can approve this diet. The plaintiff contacted the HSU
and asked for a kosher diet to replace his regular diet. He began receiving three bag lunches
due to his special medical need. A nurse from the HSU asked Aramark’s staff if there was
a snack that could be given to prevent the loss of weight and to provide a healthy diet to the
plaintiff’s special needs. Aramark’s staff told the HSU that they do not offer a kosher snack,
and this information was relayed to the plaintiff by the HSU.
On November 3, 2013, the plaintiff filed a grievance against Aramark for not
providing a kosher snack. The food service director responded, “There are no kosher snacks.
As you were told when you requested the kosher menu it is your choice, either 3 kosher
meals per day, or regular meals with snacks provided as was in the past.” (Complaint
Exhibits, p. 4, ECF 1-1). The plaintiff appealed, and he was told, “The Jail Doctor removed
you from your 3 snacks so this grievance is mute [sic] since you are not receiving snacks.
There is no argument for Aramark to provide kosher snacks.” Id. at p. 5. The plaintiff tried
to appeal again, but he was told that jail policy allows for one appeal per grievance.
The plaintiff cites Aramark’s ability to serve special meals on Sundays and
when ordered by family or friends through a special website. He believes that Aramark has
the capability to serve him a kosher snack to comply with his medical needs. The plaintiff

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suggests that Aramark and its staff have caused him stress and weight loss.
“Most defendants under § 1983 are public employees, but private companies
and their employees can also act under color of state law and thus can be sued under § 1983.”
Shields v. Illinois Dept. Of Corrections, 746 F.3d 782, 789 (7th Cir. 2014). Accordingly,
the Court will consider the plaintiff’s claims against the defendants, Aramark Food
Company, the food services supervisor at the Brown County Jail, and other unnamed food
service employees.
Although the plaintiff used kosher meals to address his dietary needs and
mentions that he is a Muslim, he makes no assertion that he wants or needs kosher snacks (or
meals, for that matter) to exercise his religion. Therefore, the Court will not consider the
plaintiff’s claim under the First Amendment or related statutes.
Ultimately, the plaintiff’s complaint boils down to the denial of kosher snacks
in addition to the three bag meals he received each day. A valid claim of deliberate
indifference under the Eighth Amendment has both objective and subjective elements.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). To state a claim an inmate must first allege
that he suffered a deprivation sufficiently serious to have denied him “the minimal civilized
measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); see Farmer,
511 U.S. at 834; Roe v. Elya, 631 F.3d 843, 857 (7th Cir. 2011). Second, the inmate must
allege that the defendants were subjectively aware that their conduct was creating a
substantial risk of serious harm. Farmer, 511 U.S. at 834, 837; Roe, 631 F.3d at 857.

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The Eighth Amendment imposes a duty on prison officials to provide humane
conditions of confinement, including ensuring that inmates receive adequate food. Farmer,
511 U.S. at 832; Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). Withholding food
from prisoners is a deprivation of a basic need that in some circumstances will satisfy the
objective aspect of the Farmer test. See Atkins v. City of Circuit, 631 F.3d 823, 830 (7th Cir.
2011) (“Depriving a person of food for four days would impose a constitutionally significant
hardship.”); Foster v. Runnels, 554 F.3d 807, 812-13 (9th Cir. 2009) (concluding that first
Farmer element was satisfied by allegation that infirm inmate was denied food for three to
five days); Simmons v. Cook, 154 F.3d 805, 808 (8th Cir. 1998) (concluding that denial of
four consecutive meals was a sufficiently serious deprivation).
The plaintiff has not stated a claim that his constitutional rights were violated
because the defendants did not offer him kosher snacks in addition to three bag meals per
day. Even if the regular diet offered to inmates included snacks in addition to meals, the lack
of snacks to supplement the kosher bag meals does not constitute a denial of “the minimal
civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347. This situation is drastically
different from the types of food deprivation that constitute violations of the Eighth
Amendment. The plaintiff was given three bag meals per day and does not suggest that he
was ever deprived of those meals. Although the plaintiff asserts that he lost weight during
the time he was receiving the three bag meals without snacks, that is not enough to salvage
his claim. Even if the plaintiff lost some weight, there was no indication that providing him

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with three bag meals per day was creating a substantial risk of serious harm. See Farmer,
511 U.S. at 834, 837; Roe, 631 F.3d at 857. The defendants (and the Brown County Jail)
provided the plaintiff with three regular meals per day. The plaintiff volunteered the
information in the exhibits to his complaint that the jail doctor had removed the plaintiff from
a special order requiring three snacks per day. Therefore, there is no indication that snacks
were necessary to the plaintiff’s health.
This plaintiff has provided no arguable basis for relief, having failed to make
any rational argument in law or fact to support his claims. See House v. Belford, 956 F.2d
711, 720 (7th Cir. 1992) (quoting Williams v. Faulkner, 837 F.2d 304, 308 (7th Cir. 1988),
aff'd sub nom. Neitzke v. Williams, 490 U.S. 319 (1989)).
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to
proceed in forma pauperis (Docket #2) is granted.
IT IS FURTHER ORDERED that this action be and hereby is dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.
IT IS FURTHER ORDERED that the Clerk of Court document that this
inmate has brought an action that was dismissed for failure to state a claim under 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1).
IT IS FURTHER ORDERED that the Clerk of Court document that this
inmate has incurred a "strike" under 28 U.S.C. §1915(g).
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department

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of Corrections or his designee shall collect from the plaintiff's prison trust account the
$347.33 balance of the filing fee by collecting monthly payments from the plaintiff's prison
trust account in an amount equal to 20% of the preceding month's income credited to the
prisoner's trust account and forwarding payments to the Clerk of Court each time the amount
in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The payments shall
be clearly identified by the case name and number assigned to this action.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment
accordingly.
IT IS ALSO ORDERED that copies of this order be sent to the warden of
Dodge Correctional Institution and to Corey F. Finkelmeyer, Assistant Attorney General,
Wisconsin Department of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857.
I FURTHER CERTIFY that any appeal from this matter would not be taken
in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide
arguments supporting his appeal.
Dated at Milwaukee, Wisconsin, this 6th day of August, 2014.
SO ORDERED,

HON. RUDOLPH T. RANDA
U. S. District Judge

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