Gill v. Aramark et al

Filing 12

ORDER signed by Judge Pamela Pepper on 9/5/2018. 2 Plaintiff's motion for leave to proceed without prepayment of filing fee GRANTED; agency having custody of plaintiff to collect $348.98 balance of filing fee from plaintiff's prison trust account under 28 USC §1915(b)(2). 7 Plaintiff's motion for extension of time to pay filing fee DENIED as moot. 10 Plaintiff's motion for preliminary injunction DENIED. Defendant Outagamie County Jail DISMISSED. Plaintiff to file amended complaint by 10/12/2018. (cc: all counsel, via mail to Charles Gill (with copy of EDWI complaint form) and Warden at Dodge Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
CHARLES B. GILL, SR.,
Plaintiff,
v.

Case No. 18-cv-540-pp

ARAMARK CORRECTIONAL SERVICES,
THOMAS HARE, OUTAGAMIE COUNTY JAIL,
LT. VERHEYEN, MICHELLE HARE, and
JENNY DOE, District Manager of Aramark,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), SCREENING
COMPLAINT (DKT. NO. 1), DENYING AS MOOT PLAINTFF’S MOTION FOR
EXTENSION OF TIME TO PAY INITIAL PARTIAL FILING FEE (DKT. NO. 7),
DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION (DKT.
NO. 10), AND DIRECTING PLAINTIFF TO FILE AN AMENDED COMPLAINT
BY OCTOBER 12, 2018
______________________________________________________________________________
In January 2018, the plaintiff was in custody at the Outagamie County
Jail. Representing himself, he filed a complaint under 42 U.S.C. §1983 alleging
that the defendants violated his civil rights. This decision resolves the plaintiff’s
motion for leave to proceed without prepayment of the filing fee, dkt. no. 2,
screens his complaint, dkt. no. 1, and resolves his motion for preliminary
injunction, dkt. no. 10.
I.

Motion for Leave to Proceed without Prepayment of the Filing Fee
(Dkt. No. 2)
The Prison Litigation Reform Act applies to this case because the plaintiff

was incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows
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a court to give an incarcerated plaintiff the ability to proceed with his case
without prepaying the civil case filing fee, if he meets certain conditions. One of
those conditions is that the plaintiff pay an initial partial filing fee. 28 U.S.C.
§1915(b). Once the plaintiff pays the initial partial filing fee, the court may
allow the plaintiff to pay the balance of the $350 filing fee over time, through
deductions from his prisoner account. Id.
On April 10, 2018, the court ordered the plaintiff to pay an initial partial
filing fee of $1.02. Dkt. No. 4. The court received that fee on April 25, 2018. The
court will grant the plaintiff’s motion for leave to proceed without prepayment
of the filing fee, and will allow him to pay the remainder of the filing fee over
time in the manner explained at the end of this order.
The court will deny as moot the plaintiff’s motion for extension of time to
pay the initial partial filing fee because he has already paid it. Dkt. No. 7.
II. Screening the Plaintiff’s Complaint
A.

Federal Screening Standard
The law requires the court 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
if the plaintiff raises claims that are legally “frivolous or malicious,” that fail to
state a claim for which a federal court can grant relief, or that seek monetary
relief from a defendant who is immune from such relief. 28 U.S.C. §1915A(b).
To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
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678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows a court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To state a claim under 42 U.S.C. §1983, a plaintiff must allege that: 1)
someone deprived him of a right secured by the Constitution or laws of the
United States; and 2) the person who deprived him of that right was acting
under color of state law. Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861
(7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court
gives a pro se plaintiff’s 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)).
B.

The Plaintiff’s Allegations

The plaintiff alleged that at the time of the events in the complaint, he
was an inmate at the Outagamie County Jail in Appleton, Wisconsin. Dkt. No.
1 at 3. In the original complaint, he sued Aramark, Thomas “Doe,” the
Outagamie Jail, Lt. Verheyen and Lt. Wirtz. Dkt. No. 1 at 1. Not quite two
weeks later, the plaintiff filed a document titled “Amendments,” in which he
stated that he would like to amend the list of defendants. Dkt. No. 6. The
plaintiff asked to remove Lieutenant Brian Wirtz as a defendant. Id. He asked
to add the following individuals as defendants: (1) Jenny Doe, district manager
of Aramark, and (2) Michelle Hare, kitchen worker for Aramark. Id. Finally, the
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plaintiff asked to change defendant “Thomas Doe” to Thomas Hare (whom he
identifies as a kitchen worker for Aramark). Id. The clerk’s office has updated
the docket to reflect those changes, and the court screens the case for claims
against the following defendants: Outagamie County Jail, Aramark, Thomas
Hare, Lt. Verheyen, Jenny Doe (Aramark manager) and Michelle Hare (Aramark
kitchen worker).
The complaint states that the plaintiff is a Muslim, and that both
Aramark and the jail recognize that. Dkt. No. 1 at 3. He alleges that in January
2018, he asked the jail for a Halal diet. Id. The plaintiff says that Aramark sent
him a vegan tray, and that both Aramark workers and jail officers said that “a
vegan tray does not violate a Halal meal.” Id. The plaintiff asserts that he filed a
grievance about this, and that a sergeant sustained the grievance. Id. The
plaintiff indicates, however, the sergeant said that while Aramark was working
to find a solution, the plaintiff’s “only option” was a vegan diet. Id. at 3-4.
The plaintiff alleges that on February 13, 2018, Aramark started giving
the plaintiff “Halal meat” four times per week, which meant that the plaintiff
received seventeen vegan meals weekly, instead of twenty-one. Id. at 4. Three
days later, defendant Lt. Verheyen sent the plaintiff a letter stating that he did
not think that a vegan diet violated any Halal principles. Id. The plaintiff says
that he informed Aramark and the jail that he ate meat and dairy; he also
allegedly tried to show Aramark, Lt. Verheyen, and Lt. Wirtz three chapters in
the Qur’an that said “for [the plaintiff] to eat meat.” Id. The plaintiff states that

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for “69 days and counting,” no one from Aramak or the jail came to look at
those chapters. Id.
The plaintiff alleges that defendant Thomas Hare, the kitchen manager
for Aramark, never responded to his requests and continued to send him vegan
meals. Id. at 4-5. The plaintiff says that the jail did nothing “to stop it.” Id. at 5.
The plaintiff states that he told many officers that his rights were being
violated. Id. He also states that Lt. Wirtz sent him a letter on February 22,
2018, stating, “we are confident that we are neither disrespecting your religion
nor violating your rights regarding your requested Halal diet.” Id.
The plaintiff alleges that he refused to eat for a week because he did not
know “what to do or who to trust,” and that he was stressed mentally and
emotionally. Id. He states that there was no “Imam/Islamic leader” in the jail,
and that the last time the plaintiff had spoken to an Islamic leader was on
January 30, 2018 (over two months before he filed his complaint). Id. The jail
and Aramark allegedly ignored the plaintiff’s request for a “complete Halal diet”
and continued to force him to eat primarily a vegan diet. Id. The plaintiff
asserts that this put a major burden on him, and that forcing him to adhere to
a vegan diet violated his sincere religious beliefs because his religion required
him to eat meat. Id.
The plaintiff says that on March 22, 2018, he notified Sgt. Hintze and Lt.
Wirtz that the jail and Aramark violated his rights under the Religious Land
Use and Institutionalized Persons Act (RLUIPA), the First Amendment and the
Fourteenth Amendment. Id. Four days later, the plaintiff allegedly wrote to Lt.
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Wirtz and Lt. Verheyen, asking them one last time to change his diet from
vegan to Halal. Id. He did not receive a response. Id. The plaintiff states that he
asked to speak with Megan from the mental health department, because he
had become distraught due to the “neglect and deprivation.” Id. He asserts that
there had been many suicides in the jail, and that he did not want to become
another “victim of [the jail’s] consistent negligence.”1 Id.
The plaintiff alleges that on March 27 and 28, 2018, Aramark changed
his diet without his authorization; he does note that a sergeant corrected this
problem. Id. Regardless, the plaintiff alleged that Aramark served the plaintiff
eighty-four trays per month, of which fourteen were Halal and sixty-eight were
vegan. Id. (The plaintiff doesn’t say what the other two trays were.)
For relief, the plaintiff asked for (1) Halal meals until he was released, (2)
declaratory relief in that Aramark and the jail violated RLUIPA by not providing
him with constant Halal meals or kosher meals for over sixty-nine days, (3)
declaratory relief in that Aramark and the jail violated the Equal Protection
Clause by intentionally denying the plaintiff Halal meals or an alternative of
kosher meals for over 69 days, (4) declaratory relief in that Aramark and the
jail violated the Establishment Clause of the First Amendment, (5) declaratory
relief in that Aramark and the jail violated the Free Exercise Clause of the First
Amendment and (6) punitive and compensatory damages. Id. at 6-7.

The plaintiff did eventually speak with someone from mental health on March
29, 2018. Dkt. No. 1 at 5.
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C.

The Court’s Analysis
1.

Outagamie County Jail

The court will not allow the plaintiff to proceed against the Outagamie
County Jail. Section 1983 prohibits “persons” acting under color of state law
from violating someone’s civil rights. A county jail is not a person. It is a
subdivision of the county. A county jail is not a “suable entity” under §1983.
See Smith v. Knox Cty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012). It is possible
to sue a government unit (rather than a person) under §1983, if the plaintiff
alleges that the government entity had a “policy or custom” of violating a
person’s civil rights. Monell v. Dep’t of Soc. Serv’s of City of New York, 436 U.S.
658, 694 (1978). If the plaintiff believes that Outagamie County had such a
policy or custom, he needs to make that allegation against the county.
2.

Aramark

The plaintiff has also named Aramark, a private corporation that
provides food services to a variety of industries. See
https://www.aramark.com. For the purposes of §1983, a private corporation is
not a “person.” Nor is it a government official or employee. For a plaintiff to
state a §1983 claim against a private entity, the plaintiff “must show that the
private entity acted under the color of state law.” Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 822 (7th Cir. 2009); see also, Rice ex rel. Rice
v. Correctional Medical Serv’s, 675 F.3d 650, 675 (7th Cir. 2012) (citing Monell,
436 U.S. at 690-91). “At its most basic level, the state action doctrine requires
that a court find such a ‘close nexus between the State and the challenged
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action’ that the challenged action ‘may be fairly treated as that of the State
itself.’” Id. at 823 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351
(1999)). And, just as with a government unit, the plaintiff must show that even
if the private entity can be considered a state actor, it denied his rights as part
of an official policy or custom. Id. (citations omitted). “An official policy or
custom may be established by means of an express policy, a widespread
practice which, although unwritten, is so entrenched and well-known as to
carry the force of policy, or through the actions of an individual who possesses
the authority to make final policy decisions on behalf of the municipality or
corporation.” Id. (citations omitted).
While the plaintiff does not say so, it appears that the jail contracted with
Aramark to provide inmate meals. The plaintiff alleges that Aramark refused to
provide him with Halal meals, and gave him vegan meals instead. He alleges
that this happened numerous between January 24 and April 6, 2018 (the date
he filed his complaint). At this early stage, the court concludes that the plaintiff
has alleged that Aramark established a pattern of giving him vegan meals,
instead of Halal meals.
The plaintiff has alleged that by providing him vegan meals instead of
Halal meals, Aramark violated his First Amendment right to freely exercise his
religion. Prison inmates retain their free exercise right, “although that right is
not unfettered.” Ortiz v. Downey, 561 F.3d 664, 669 (7th Cir. 2009). “Prison
officials may restrict inmate’s ability to practice his faith so long as the
restriction is reasonably related to a legitimate penological interest.” Id. (citing,
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e.g., Turner v. Safley, 482 U.S. 78, 89 (1987)). Such “legitimate” penological
interests can include security and economic concerns. Id. (citation omitted). At
this point, the plaintiff has alleged sufficient facts to support a claim that
Aramark restricted his free exercise rights without a legitimate penological
interest. Id. (concluding that allegation that defendants’ denial of rosary and
other items to Catholic inmate was sufficient to state a claim, without any
evidence in the record of a legitimate penological interest); see also Thompson
v. Holm, 809 F.3d 376, 379-80 (7th Cir. 2016) (denial of meal bags during
Ramadan substantially burdened prisoner’s free exercise rights).
The plaintiff’s allegations also imply that Aramark violated his rights
under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42
U.S.C. § 2000cc–1(a). RLUIPA prohibits prisons that receive federal funds from
imposing a substantial burden on a prisoner's religious exercise unless the
burden furthers a compelling governmental interest and does so by the least
restrictive means. See 42 U.S.C. § 2000cc–1(a); Koger v. Bryan, 523 F.3d 789,
796 (7th Cir. 2008).
The plaintiff has not stated sufficient facts to support an equal protection
claim, because he has not alleged that Aramark treated him any differently
from other inmates. See Cardenas v. Washington, 12 Fed. App’x 410, 412 (7th
Cir. 2001).
The plaintiff also has not stated sufficient facts to allow him to proceed
against Aramark on an Establishment Clause claim under the First
Amendment. A state actor’s practice or policy “violates the Establishment
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Clause if (1) it has no secular purpose, (2) its primary effect advances or
inhibits religion, or (3) it fosters an excessive entanglement with religion.”
Nelson v. Miller, 570 F.3d 868, 881 (7th Cir. 2009). The plaintiff has not alleged
any of these things.
The court will allow the plaintiff to proceed against Aramark on a First
Amendment free exercise claim and a RLUIPA claim.
3.

Thomas Hare, Lt. Verheyen, Jenny Doe and Michelle Hare

The complaint alleged that Thomas Hare, “the kitchen manager for
Aramark,” never responded to any of the plaintiff’s requests, and “continued to
send vegan meals to” the plaintiff. Dkt. No. 1 at 4-5. While this allegation is
thin on details—did the plaintiff make requests directly to Hare? Does he know
that Hare received his complaints?—the court will, at this early stage, allow the
plaintiff to proceed against Hare on First Amendment free exercise and RLUIPA
claims.
The complaint alleged that in February 2018, when Aramark started
giving him Halal meat four times a week, he got a letter from Lt. Verheyen. Dkt.
No. 1 at 4. Verheyen told the plaintiff that he did not think that vegan meals
violated Halal. Id. The plaintiff said that he tried to show Verheyen several
chapters of the Qur’an, proving that he was supposed to be eating meat, but
Verheyen never came to look at the chapters. Id. The plaintiff also alleged that
he wrote to Verheyen on March 26, 2018, asking him “one last time” to giving
him a Halal diet; as of the time the plaintiff filed his complaint, Verheyen did
not respond. Id. at 5. For the reasons stated above regarding Aramark, the
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court will allow the plaintiff to proceed on First Amendment free exercise and
RLUIPA claims against Verheyen.
The plaintiff has made no specific allegations against defendants Jenny
Doe and Michelle Hare, the two defendants he added in his April 18, 2018,
Amendment. To state a §1983 claim against an individual, a plaintiff must
show “personal involvement in the alleged constitutional deprivation.” Colbert
v. City of Chi., 851 F.3d 649, 657 (7th Cir. 2017) (quoting Minix v. Canarecci,
597 F.3d 824, 844 (7th Cir. 2010)). The plaintiff must show that there is a
“causal connection between (1) the sued officials and (2) the alleged
misconduct.” Id. (citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.
2983)). If the plaintiff wants to pursue claims against Jenny Doe and Michelle
Hare (or any other employees of the Outagamie County Jail or Aramark), he
must explain what they did to violate his civil rights.
The court will give the plaintiff an opportunity to amend his complaint
regarding Jenny Doe and Michelle Hare. The court is enclosing a copy of its
complaint form and instructions. The plaintiff should write the word
“AMENDED” in front of the word “COMPLAINT” at the top of the first page, and
then put the case number for this case—18-cv-540-PP—in the field for “Case
Number.” He must list all the defendants in the caption of the complaint. He
must use the spaces on pages two and three to allege the key facts that give
rise to the claims he wishes to bring, and to describe which defendants he
believes committed the violations that relate to each claim. In this section, the
plaintiff should provide the court with enough facts to answers to the following
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questions: 1) Who violated his rights? 2) How did each person violate his
rights? 3) Where did each person violate his rights? and 4) When did each
person violate his rights? This section of the complaint does not need to be
long, or to contain legal language or citations to statutes or cases, but it does
need to provide the court and each defendant with notice of what each
defendant allegedly did to violate the plaintiff’s rights. If the space is not
enough, the plaintiff may use up to five additional sheets of paper (putting page
numbers on each additional page).
The amended complaint takes the place of the prior complaint, and must
be complete, standing alone. The plaintiff cannot simply say, “Look at my first
complaint for further information.” See Duda v. Bd. of Educ. of Franklin Park
Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir. 1998).
If the plaintiff files the amended complaint by the deadline the court has
set below, the court will screen it under 28 U.S.C. §1915A.
III.

Motion for Preliminary Injunction (Dkt. No. 10)
On May 29, 2018, the plaintiff filed a motion for preliminary injunction.

Dkt. No. 10. He asked the court to (1) order the jail to provide Halal or Kosher
meats for Muslims as often as they serve meat to Christians, Natives, and other
ethnicities; (2) prohibit Aramark from putting “Haram/forbidden” items on
Halal trays; (3) order the jail and Aramark to stop forcing Muslim inmates to
adhere to a vegan diet; (4) order the jail to stop treating Muslims unfairly; and
(5) to prohibit Aramark worker Thomas Hare from making comments about the
plaintiff’s requests. Id. at 1-3. The plaintiff stated that he feared that the jail
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and Aramark would retaliate against him, not only because of his religious
beliefs and practices, but also because of this suit against them. Id. at 3.
A party seeking a preliminary injunction must demonstrate that he is
reasonably likely to succeed on the merits, that he will experience irreparable
harm if the court does not grant the injunctive relief he requests, that he does
not have an adequate remedy at law, and that the injunction would not harm
the public interest. Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir.
2006). “If the moving party meets this threshold burden, the district court
weighs the factors against one another in a sliding scale analysis . . . which is
to say the district court must exercise its discretion to determine whether the
balance of harms weighs in favor of the moving party or whether the
nonmoving party or public interest will be harmed sufficiently that the
injunction should be denied. Id.; see Joelner v. Vill. of Wash. Park, 378 F.3d
613, 619 (7th Cir. 2004).
The court first notes that although the plaintiff was in the Outagamie
County Jail when these events happened, he is no longer there. The Wisconsin
Department of Corrections Inmate Locator service shows that on August 27,
2018, the plaintiff was transferred to Dodge Correctional Institution.
https://appsdoc.wi.gov/lop/detail.do. Given this, the plaintiff cannot
demonstrate that he will suffer irreparable harm from the defendants in the
future, particularly his concern that the defendants would retaliate against him
for filing this suit.

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Even if the plaintiff remained at the Outagamie County Jail, he would
not be able to demonstrate that he had no adequate remedy at law. The
traditional remedy at law is money damages. See, e.g., Girl Scouts of Manitou
Council, Inc. v. Girl Scouts of USA, Inc., 549 F.3d 1079, 1095 (7th Cir. 2008).
If the plaintiff wins this lawsuit, he can obtain money damages for any
constitutional violations the defendants committed between April and August
of 2018.
For these reasons, the court will deny the plaintiff’s motion for a
preliminary injunction.
IV.

Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed without

prepayment of the filing fee. Dkt. No. 2.
The court DENIES AS MOOT the plaintiff’s motion for extension of time
to pay filing fee. Dkt. No. 7.
The court DENIES the plaintiff’s motion for preliminary injunction. Dkt.
No. 10.
The court ORDERS that Outagamie County Jail is DISMISSED as a
defendant.
The court ORDERS that the plaintiff shall file an amended complaint
that complies with the instructions in this decision. The plaintiff shall file the
amended complaint in time for the court to receive it by the end of the day on
Friday, October 12, 2018.

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The court ORDERS that the agency having custody of the plaintiff shall
collect from his institution trust account the $348.98 balance of the filing fee
by collecting monthly payments from the trust account in an amount equal to
20% of the preceding month’s income credited to the 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 the plaintiff transfers to
another county, state or federal institution, the transferring institution shall
forward a copy of this order, along with the plaintiff's remaining balance, to the
receiving institution.
The court will send a copy of this order to the officer in charge of Dodge
Correctional Institution.
The court ORDERS the 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.
The court advises the plaintiff that, if he fails to file documents or take
other required actions by the deadlines the court sets, the court may dismiss
the case based on his failure to prosecute. The parties must notify the clerk of
court of any change of address. Failure to do so could result in orders or other
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information not being timely delivered, thus affecting the legal rights of the
parties.
Dated in Milwaukee, Wisconsin this 5th day of September, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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