Barfell v. Aramark et al

Filing 13

SCREENING ORDER signed by Judge J.P. Stadtmueller on 4/16/2018 re 9 Amended Complaint. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Agency having custody of Plaintiff to COLLECT the balance of t he filing fee from his institution trust account in accordance with this Order. Defendants Winnebago County Jail, Tim, Gale, Jenny, Lt. Lichtensteiger, Sgt. Manthey, Sgt. Durrant, Deputy Archer, and CPI Vergutz DISMISSED from action. Plaintiff PERMITTED to proceed on First Amendment free exercise of religion claims as specified against Defendants Aramark and Sgt. Parent. U.S. Marshals Service to SERVE copy of Amended Complaint and this Order on Defendants Aramark and Sgt. Parent, who shall FILE a responsive pleading to the Amended Complaint. 11 Plaintiff's Motion to Consolidate Cases DENIED. 12 Plaintiff's Motion to Appoint Counsel DENIED without prejudice. Case RETURNED to Magistrate Judge William E. Duffin for further proceedings. Parties may not begin discovery until a Scheduling Order is entered. See Order for further details. (cc: all counsel, via mail to Thomas H L Barfell and Sheriff at Winnebago County Jail)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS H. L. BARFELL,
Plaintiff,
v.

Case No. 17-CV-1567-WED-JPS

ARAMARK, WINNEBAGO COUNTY
JAIL, TIM, GALE, JENNY, LT.
LICHTENSTEIGER, SGT.
MANTHEY, SGT. PARENT, SGT.
DURANT, DEPUTY ARCHER, and
CPI VERGUTZ,

ORDER

Defendants.
Plaintiff Thomas H. L. Barfell, a Wisconsin state prisoner who is
representing himself, filed a complaint under 42 U.S.C. § 1983, alleging
that Defendants violated his civil rights. This case is currently assigned to
Magistrate Judge William E. Duffin. Not all parties have had the
opportunity to fully consent to magistrate judge jurisdiction under 28
U.S.C. § 636(c). Therefore, this matter is before this branch of the Court for
the limited purpose of screening the amended complaint, (Docket #9), and
resolving pending motions, (Docket #2, #11, #12).
1.

Plaintiff’s Motion to Proceed Without Prepayment of the Filing
Fee
The Prison Litigation Reform Act (“PLRA”) applies to this case

because Plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §
1915. The law allows an incarcerated plaintiff to proceed with his lawsuit
without prepaying the filing fee, as long as he meets certain conditions.
One of those conditions is that the plaintiff pay an initial partial filing fee.

Id. § 1915(b). Once plaintiff pays the initial partial filing fee, the Court may
allow him to pay the balance of the $350 filing fee over time, through
deductions from his prison trust account. Id.
On December 19, 2017, Magistrate Duffin waived the initial partial
filing fee in this action because Plaintiff neither had the assets nor the
means to pay it. (Docket #7). Magistrate Duffin ordered Plaintiff to notify
the court by January 9, 2018 if he wanted to voluntarily dismiss the action
to avoid the potential to incur a strike under Section 1915(g). Plaintiff did
not voluntarily dismiss; therefore, the Court will grant his motion to
proceed without prepayment of the filing fee and will screen his amended
complaint.
2.

Screening the Amended Complaint
2.1

Applicable Law

The Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or employee of a
governmental entity. Id. § 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. Id. § 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); Gladney v. Pendelton
Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002). 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; Gladney, 302 F.3d at 774. “Malicious,” although sometimes
treated as a synonym for “frivolous,” “is more usefully construed as
Page 2 of 11

intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir.
2003); Paul v. Marberry, 658 F.3d 702, 705 (7th Cir. 2011).
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; his statement need
only “‘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)); Christopher v. Buss,
384 F.3d 879, 881 (7th Cir. 2004). 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
reasonable inference that the defendant is liable for the misconduct
alleged.” Id. The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555; Christopher,
384 F.3d at 881.
In considering whether a complaint states a claim, courts should
first “identif[y] 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 wellpleaded factual allegations, the Court must “assume their veracity and
then determine whether they plausibly give rise to an entitlement to
relief.” Id. The Court is obliged to give Plaintiff’s pro se allegations,
Page 3 of 11

“‘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)).
2.2

Factual Allegations

Plaintiff is an inmate at the Winnebago County Jail (“WCJ”).
Defendants are: Aramark, WCJ, Tim, Gale, Jenny, Lt. Lichtensteiger, Sgt.
Manthey, Sgt. Parent, Sgt. Durrant, Deputy Archer, and CPI Vergutz. On
September 21, 2017, Plaintiff asked Corporal Rasmussen, who is not
named as a defendant, for a religious vegan diet. Rasmussen was on
vacation at the time and Sgt. Parent “was put in charge” of such requests.
(Docket #9 at 2). Parent did not approve Plaintiff’s religious vegan diet
request until five days later, on September 26, 2017.
Between September 2017 and January 2018, Plaintiff asked
Manthey, Durrant, and Vergutz for inmate grievance forms to complain
about the quality of the vegan food trays he received from the prison food
service, Aramark. According to Plaintiff, Aramark sent the same exact
food at every meal every day, they often sent food Plaintiff could not eat
(milk, eggs, and meat), they once sent food mixed with “cleaning
solution,” and they occasionally sent expired food that had spoiled.
Sometime in October 2017, Archer gave Plaintiff “rice crispies” off of one
the “regular” trays, but Plaintiff cannot eat them because they contain
milk and eggs.
Manthey gave Plaintiff the inmate grievance forms he requested on
some occasions. On other occasions, Manthey refused because the issues
Plaintiff complained about “had already been addressed.” (Docket #9 at 3–
4). Similarly, Durrant and Vergutz sometimes addressed Plaintiff’s

Page 4 of 11

concerns regarding his religious diet, but at other times they would deny
his request for an inmate grievance form.
Plaintiff noticed that after he filed his grievances with Aramark, his
portion sizes began to shrink. He also notes that Aramark has refused to
give him nutritional facts and a menu, and Aramark’s website does not
have a vegan “care package” option for his family to purchase and send to
him. Plaintiff seeks monetary damages and an injunction.
2.3

Legal Analysis

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); Gomez v. Toledo, 446
U.S. 635, 640 (1980).
At the outset, the Court must dismiss WCJ as a defendant. A
county jail is not a “person” subject to suit under Section 1983. See
Nawrocki v. Racine Cty. Jail, No. 08-CV-96-BBC, 2008 WL 4417314, at *1
(W.D. Wis. Mar. 7, 2008) (“[A] building is not a proper party to a lawsuit
brought under 42 U.S.C. § 1983.”).
Next, the Court will dismiss Tim, Gale, Jenny, Lt. Lichtensteiger,
and Archer from this action for lack of personal involvement. Liability
under Section 1983 is based on a defendant’s personal involvement in the
constitutional violation. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.
1995). “An official satisfies the personal responsibility requirement of
section 1983. . .if the conduct causing the constitutional deprivation occurs
at [his] direction or with [his] knowledge and consent.” Id. He “must

Page 5 of 11

know about the conduct and facilitate it, approve it, condone it, or turn a
blind eye.” Id.
Plaintiff alleges no facts at all about Tim, Gale, Jenny, and Lt.
Lichtensteiger, including what they did or did not do to violate his
constitutional rights. Further, Plaintiff’s only allegation against Archer is
that Archer delivered a food tray that contained “rice crispies.” Plaintiff
does not allege that Archer intentionally gave him food that he could not
eat, nor does he allege that Archer is an Aramark employee responsible
for putting together vegan food trays. Therefore, the Court will dismiss
Tim, Gale, Jenny, Lt. Lichtensteiger, and Archer from this action.
The Court now turns to the remaining defendants. The First
Amendment protects an inmate’s right to the free exercise of religion. See
Thompson v. Holm, 809 F.3d 376, 380 (7th Cir. 2016). Forcing an inmate to
choose between daily nutrition and religious practice is a substantial
burden on an inmate’s right to exercise religious freedom. Id.
Plaintiff states that he needs a vegan diet for religious reasons. He
requested a vegan diet on September 21, 2017, and Sgt. Parent, who was in
charge of religious diets while CPL Rasmussen was on vacation, did not
approve it until five days later. During that time, Plaintiff had to choose
between eating food and exercising his religion. Therefore, he may
proceed with a First Amendment claim against Parent for the five days he
was not able to eat food while awaiting his vegan diet.
Plaintiff also states that the vegan meal trays Aramark provides are
inadequate for a variety of reasons. A private corporation can be held
liable under Section 1983 for its employees’ constitutional violations if an
official corporate policy caused the violation. See Woodward v. Corr. Med.
Servs. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004); Rodriguez v. Plymouth
Page 6 of 11

Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009). The plaintiff must show
that an official corporate policy reflects “a conscious choice among
alternatives that evinces a deliberate indifference to the rights of the
individuals with whom those employees will interact.” Rice ex rel. Rice v.
Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir. 2012).
Plaintiff may proceed with a claim against Aramark that its
employees routinely send religious vegan meal trays containing animal
product that he cannot eat. Plaintiff, however, does not have a
constitutional right to tasty food, a variety in his food, the most nutritious
food, or receiving care packages. See Reed v. McBride, 178 F.3d 849, 853–54
(7th Cir. 1999); Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988)
(prisoners cannot expect the “amenities, conveniences, and services of a
good hotel.”). Therefore, Plaintiff may not procced with claims regarding
receiving the same food every day, being fed “processed” foods,
occasionally getting expired and spoiled food, and not having a care
package option for his family to purchase.
Finally, Plaintiff notes that, on different days between September
2017 and January 2018, he asked Manthey, Durrant, and Vergutz for an
inmate grievance form to complain about the inadequate food trays he
received. Sometimes he received the grievance form he requested and
sometimes he did not. Plaintiff appears to imply that Manthey, Durrant,
and Vergutz hindered his access to the courts by refusing the provide the
grievance forms he requested. The Court will allow Plaintiff to proceed
with a claim regarding these facts in another lawsuit he has brought
simultaneously with this one. That suit is Barfell v. Prekop, Case No. 17-CV1739-WED-JPS (E.D. Wis.). This lawsuit will be limited to his First

Page 7 of 11

Amendment free exercise of religion claim. Therefore, the Court will
dismiss Manthey, Durrant and Vergutz from this action.
3.

Plaintiff’s Motion to Consolidate
Plaintiff asks to consolidate this case with: (1) Barfell v. Correctional

Health Care Companies, Case No. 17-CV-1365-WED-JPS (E.D. Wis.); and (2)
Barfell v. Prekop, Case No. 17-CV-1739-WED-JPS (E.D. Wis.) because it will
be less costly. See (Docket #11). Plaintiff cannot consolidate these lawsuits
because they do not share common questions of law and fact. See Fed. R.
Civ. P. 42(a). Therefore, the Court will deny Plaintiff’s motion to
consolidate.
4.

Plaintiff’s Motion to Appoint Counsel
Plaintiff also asks for Court-appointed counsel. (Docket #12). In a

civil case, the Court has discretion to recruit a lawyer for someone who
cannot afford one. Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir. 2013).
However, the litigant must first make reasonable efforts to hire private
counsel on his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). In this
district, a plaintiff can satisfy this requirement by providing the Court
with: (1) the attorneys’ names, (2) the addresses, (3) the date and way the
plaintiff attempted to contact them, and (4) the attorneys’ responses.
Once the plaintiff makes reasonable attempts to hire counsel, the
Court then decides “whether the difficulty of the case—factually and
legally—exceeds the particular plaintiff’s capacity as a layperson to
coherently present it.” Navejar, 718 F.3d at 696. The Court looks not only at
the plaintiff’s ability to try his case, but also at his ability to perform other
“tasks that normally attend litigation,” such as “evidence gathering” and
“preparing and responding to motions.” Id.

Page 8 of 11

Plaintiff states that has made “repeated efforts to obtain a lawyer.”
(Docket #12). He appears to have written out the text of a letter he
allegedly sent to attorneys requesting counsel. (Docket #12-1). As
discussed above, Plaintiff must prove that he actually attempted to contact
lawyers by providing the Court with the following information: (1) the
attorneys’ names, (2) the addresses, (3) the date and way he attempted to
contact them, and (4) the attorneys’ responses. Plaintiff has not satisfied
this requirement. “[D]eciding whether to recruit counsel ‘is a difficult
decision: Almost everyone would benefit from having a lawyer, but there
are too many indigent litigants and too few lawyers willing and able to
volunteer for these cases.’” Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir.
2014) (quoting Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014)). Thus,
Plaintiff must first do what is required of him before the Court will
consider appointing counsel. Therefore, the Court will deny without
prejudice Plaintiff’s motion for the appointment of counsel.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to proceed without
prepayment of the filing fee (Docket #2) be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that the agency having custody of
plaintiff shall collect from his institution trust account the balance of the
filing fee by collecting monthly payments from plaintiff’s prison trust
account in an amount equal to 20% of the preceding month’s income
credited to plaintiff’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 agency shall clearly identify the payments
by the case name and number. If plaintiff transfers to another county,
Page 9 of 11

state, or federal institution, the transferring institution shall forward a
copy of this order, along with plaintiff’s remaining balance, to the
receiving institution;
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where Plaintiff is confined;
IT IS FURTHER ORDERED that Plaintiff’s motion to consolidate
(Docket #11) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion to appoint
counsel (Docket #12) be and the same is hereby DENIED without
prejudice;
IT IS FURTHER ORDERED that WCJ, Tim, Gale, Jenny, Lt.
Lichtensteiger, Sgt. Manthey, Sgt. Durrant, Deputy Archer and CPI
Vergutz be and the same are hereby DISMISSED from this action;
IT IS FURTHER ORDERED that the United States Marshal shall
serve a copy of the amended complaint and this order on Defendants
Aramark and Sgt. Parent under Federal Rule of Civil Procedure 4.
Congress requires the U.S. Marshals Service to charge for making or
attempting such service. 28 U.S.C. § 1921(a). Although Congress requires
the court to order service by the U.S. Marshals Service, it has not made
any provision for either the court or the U.S. Marshals Service to waive
these fees. The current fee for waiver-of-service packages is $8.00 per item
mailed. The full fee schedule is provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3).
The U.S. Marshals will give plaintiff information on how to remit
payment. The court is not involved in collection of the fee;
IT IS FURTHER ORDERED that Defendants Aramark and Sgt.
Parent shall file a responsive pleading to the amended complaint;

Page 10 of 11

IT IS FURTHER ORDERED that the Court RETURNS this case to
Magistrate Judge William E. Duffin for further proceedings;
IT IS FURTHER ORDERED that the parties may not begin
discovery until after the court enters a scheduling order setting deadlines
for discovery and dispositive motions; and
IT

IS

FURTHER

ORDERED

that

Plaintiff

to

mail

all

correspondence and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S
CHAMBERS. It will only delay the processing of the case.
Dated at Milwaukee, Wisconsin, this 16th day of April, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

Page 11 of 11