Opinion
No. 18-1208-JDT-cgc
10-23-2018
CLIFFORD E. BURGESS, Plaintiff, v. ARAMARK CORRECTIONAL SERVICES, ET AL., Defendants.
ORDER DISMISSING COMPLAINT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE
On October 15, 2018, Plaintiff Clifford E. Burgess, who is incarcerated at the Morgan County Correctional Complex in Wartburg, Tennessee, filed a pro se civil complaint and a motion to proceed in forma pauperis. (ECF Nos. 1 & 2.) The Court issued an order on October 16, 2018, granting leave to proceed in forma pauperis and assessing the civil filing fee pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 4.) The complaint concerns events that occurred during Plaintiff's previous incarceration at the Northwest Correctional Complex (NWCX) in Tiptonville, Tennessee. The Clerk shall record the Defendants as Aramark Correctional Services; Monique Skowronski, an Aramark Dietician; Pam Wright, Aramark's Food Service Director at NWCX; Paul Stinnett, an Aramark Food Steward at NWCX; NWCX Warden Shawn Phillips; Associate Warden Steve Jones; Captain Reeves; Sergeant John Stevenson; Officer Strictland; Tennessee Department of Correction (TDOC) Commissioner Tony Parker; and the TDOC. The Defendants are sued in both their individual and official capacities.
Burgess alleges in the complaint that Aramark is the food service provider for the meals served to all TDOC inmates, including those at the NWCX. (ECF No. 1 at 3.) Burgess alleges that on October 15, 2017, he was eating a meal at the NWCX when he felt something in his mouth that did not feel like food. He spit what he was chewing out onto his tray and saw that it was a reptile. Burgess inspected it and saw that the tail was missing. He states that he realized he had consumed part of the reptile because he had felt something scratch his throat as he swallowed. Burgess alleges he then began vomiting repeatedly, more than ten times, until he became weak and dizzy. When he was seen by medical personnel, he was told to drink lots of fluids because he was dehydrated. (ECF No. 1 at 2.)
Burgess does not provide the year, but the complaint was signed on October 9, 2018; therefore, the Court presumes the incident occurred in 2017.
Burgess alleges he has been unable to eat "much of anything" provided by Aramark since the incident and so has been "forced to live on commissary." (Id.) He contends that he continues to suffer from the incident because he experiences hunger pangs when he cannot afford commissary items. Burgess allegedly also suffers psychologically because even though he attempts to eat the food provided by Aramark, he often cannot keep it down. He states that he continues to seek medical and mental health treatment. (Id.) Burgess contends that Aramark violated his Eighth Amendment rights and caused him serious harm by depriving him of meals that meet his nutritional needs. (Id. at 5.) He seeks declaratory and injunctive relief as well as nominal, compensatory and punitive damages.
The Court is required to screen prisoner complaints and to dismiss any complaint, or any portion thereof, if the complaint
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.28 U.S.C. § 1915A(b); see also 28 U.S.C. § 1915(e)(2)(B).
In assessing whether the complaint in this case states a claim on which relief may be granted, the standards under Fed. R. Civ. P. 12(b)(6), as stated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009), and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007), are applied. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). "Accepting all well-pleaded allegations in the complaint as true, the Court 'consider[s] the factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief.'" Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 681). "[P]leadings that . . . are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 679; see also Twombly, 550 U.S. at 555 n.3 ("Rule 8(a)(2) still requires a 'showing,' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests.").
"A complaint can be frivolous either factually or legally." Hill, 630 F.3d at 470 (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). "Any complaint that is legally frivolous would ipso facto fail to state a claim upon which relief can be granted." Id. (citing Neitzke, 490 U.S. at 328-29).
Whether a complaint is factually frivolous under §§ 1915A(b)(1) and 1915(e)(2)(B)(i) is a separate issue from whether it fails to state a claim for relief. Statutes allowing a complaint to be dismissed as frivolous give judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Unlike a dismissal for failure to state a claim, where a judge must accept all factual
allegations as true, a judge does not have to accept "fantastic or delusional" factual allegations as true in prisoner complaints that are reviewed for frivolousness.Id. at 471 (citations and internal quotation marks omitted).
"Pro se complaints are to be held 'to less stringent standards than formal pleadings drafted by lawyers,' and should therefore be liberally construed." Williams, 631 F.3d at 383 (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Pro se litigants, however, are not exempt from the requirements of the Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); see also Brown v. Matauszak, 415 F. App'x 608, 612, 613 (6th Cir. Jan. 31, 2011) (affirming dismissal of pro se complaint for failure to comply with "unique pleading requirements" and stating "a court cannot 'create a claim which [a plaintiff] has not spelled out in his pleading'" (quoting Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975))); Payne v. Sec'y of Treas., 73 F. App'x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed. R. Civ. P. 8(a)(2) and stating, "[n]either this court nor the district court is required to create Payne's claim for her"); cf. Pliler v. Ford, 542 U.S. 225, 231 (2004) ("District judges have no obligation to act as counsel or paralegal to pro se litigants."); Young Bok Song v. Gipson, 423 F. App'x 506, 510 (6th Cir. 2011) ("[W]e decline to affirmatively require courts to ferret out the strongest cause of action on behalf of pro se litigants. Not only would that duty be overly burdensome, it would transform the courts from neutral arbiters of disputes into advocates for a particular party. While courts are properly charged with protecting the rights of all who come before it, that responsibility does not encompass advising litigants as to what legal theories they should pursue.").
Burgess's complaint is filed pursuant to 42 U.S.C. § 1983. In addition, he invokes the Court's supplemental jurisdiction under 28 U.S.C. § 1367(a) over "state torts and action for negligence" without any further elaboration. (ECF No. 1 at 4.)
Section § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.To state a claim under § 1983, a plaintiff must allege two elements: (1) a deprivation of rights secured by the "Constitution and laws" of the United States (2) committed by a defendant acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970).
Any claims for money damages against TDOC, including the official capacity claims against TDOC employees Parker, Phillips, Jones, Reeves, Stevenson and Strictland, are considered claims against the State of Tennessee. "[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (citation omitted). However, Burgess has no valid claim against the State of Tennessee. The Eleventh Amendment to the United States Constitution provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. The Eleventh Amendment has been construed to prohibit citizens from suing their own states in federal court. Welch v. Tex. Dep't of Highways & Pub. Transp., 483 U.S. 468, 472 (1987); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Employees of Dep't of Pub. Health & Welfare v. Mo. Dep't of Pub. Health & Welfare, 411 U.S. 279, 280 (1973); see also Va. Office for Protection & Advocacy v. Stewart, 563 U.S. 247, 253-54 (2011) ("A State may waive its sovereign immunity at its pleasure, and in some circumstances Congress may abrogate it by appropriate legislation. But absent waiver or valid abrogation, federal courts may not entertain a private person's suit against a State." (citations omitted)). By its terms, the Eleventh Amendment bars all suits, regardless of the relief sought. Pennhurst, 465 U.S. at 100-01. Tennessee has not waived its sovereign immunity. Tenn. Code. Ann. § 20-13-102(a). Moreover, a state is not a person within the meaning of 42 U.S.C. § 1983. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 617 (2002); Will, 491 U.S. at 71.
Burgess's claims against Aramark, as well as his official capacity claims against Aramark employees Skowronski, Wright and Stinnet, also fail to state a claim under § 1983. "A private corporation that performs the traditional state function of operating a prison acts under color of state law for purposes of § 1983." Thomas v. Coble, 55 F. App'x 748, 748 (6th Cir. 2003) (citing Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996)). The Sixth Circuit has applied the standards for assessing municipal liability to claims against private corporations that operate prisons or that provide medical care or food services to prisoners. Thomas, 55 F. App'x at 748-49; Street, 102 F.3d at 817-18; Johnson v. Corr. Corp. of Am., 26 F. App'x 386, 388 (6th Cir. 2001); see also Eads v. State of Tenn., No. 1:18-cv-00042, 2018 WL 4283030, at *9 (M.D. Tenn. Sept. 7, 2018). To prevail on a § 1983 claim against Aramark, Plaintiff "must show that a policy or well-settled custom of the company was the 'moving force' behind the alleged deprivation" of his rights. Braswell v. Corr. Corp. of Am., 419 F. App'x 622, 627 (6th Cir. 2011).
In this case, the fact that Burgess may have ingested part of a reptile that was in food provided to him by Aramark does not sufficiently allege that any policy or custom of Aramark was the moving force behind that injury.
To the extent that Burgess sues TDOC Defendants Parker, Phillips, Jones, Reeves, Stevenson and Strictland because of their administrative positions or their supervisory duties, he has no claim. Under § 1983, "[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Ashcroft v. Iqbal, 556 U.S. at 676; see also Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Thus, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676.
There must be a showing that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it. At a minimum, a § 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinates.Bellamy, 729 F.2d at 421 (citation omitted). A supervisory official, who is aware of the unconstitutional conduct of his subordinates but fails to act, generally cannot be held liable in his individual capacity. Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir. 2008); Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999); Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d 716, 727-28 (6th Cir. 1996). Furthermore, a failure to take corrective action in response to an inmate grievance or complaint does not supply the necessary personal involvement for § 1983 liability. See George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) ("Ruling against a prisoner on an administrative complaint does not cause or contribute to the [constitutional] violation. A guard who stands and watches while another guard beats a prisoner violates the Constitution; a guard who rejects an administrative complaint about a completed act of misconduct does not."). Burgess does not allege that Defendants Parker, Phillips, Jones, Reeves, Stevenson and Strictland, through their own actions, violated his rights.
Burgess's claim that he was served food that was contaminated with a reptile must be analyzed under Eighth Amendment principles. The Eighth Amendment prohibits cruel and unusual punishments. See generally Wilson v. Seiter, 501 U.S. 294 (1991). An Eighth Amendment claim consists of both objective and subjective components. Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the objective component, a prisoner must show that he "is incarcerated under conditions posing a substantial risk of serious harm," Farmer, 511 U.S. at 834; see also Miller v. Calhoun Cnty., 408 F.3d 803, 812 (6th Cir. 2005). The subjective component of an Eighth Amendment violation requires a prisoner to demonstrate that prison officials acted with the requisite intent, that is, that the officials acted with "deliberate indifference" to a substantial risk that the prisoner would suffer serious harm. Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 303; Helling v. McKinney, 509 U.S. 25, 32 (1993); Woods v. Lecureux, 110 F.3d 1215,1222 (6th Cir. 1997). "[D]eliberate indifference describes a state of mind more blameworthy than negligence." Farmer, 511 U.S. at 835. Thus, "the prison official must know[] of and disregard[] an excessive risk to inmate health or safety." Id. at 837-38. The subjective component must be evaluated for each defendant individually. Bishop v. Hackel, 636 F.3d 757, 767 (6th Cir. 2011); see also id. at 768 ("[W]e must focus on whether each individual Deputy had the personal involvement necessary to permit a finding of subjective knowledge.").
The Court finds that Burgess has not sufficiently alleged the objective component of an Eighth Amendment claim. Realizing that one had partially ingested a reptile contained in one's food certainly would be nausea inducing, but Burgess has alleged no more than a single isolated incident. He does not allege that the food served by Aramark was regularly contaminated or that it was nutritionally inadequate on a consistent basis. Other courts have rejected similar claims. See, e.g., Balcar v. Smith, No. 17-5159, 2017 WL 3613479, at *2 (6th Cir. July 17, 2017) (Affirming dismissal of a claim based on the prisoner being served food containing pieces of insects, rat droppings and hair, and stating, "[i]solated exposure to foreign bodies in food, including those of rodents and insects, does not constitute an Eighth Amendment violation".); (Smith v. Younger, 187 F.3d 638 (Table), 1999 WL 623355, at *2 (6th Cir. 1999) (affirming dismissal of Eighth Amendment claim based on the prisoner biting into a worm contained in her peanut butter); Annabel v. Mich. Dep't of Corr., 2018 WL 3455407, at *15 (W.D. Mich. July 18, 2018) (dismissing Eighth Amendment claim of prisoner who found a staple in one meal and a small stone in another meal three months later); Murray v. Allen, No. 10-1014, 2010 WL 4159261, at *2 (E.D. Pa. Oct. 21, 2010) (dismissing Eighth Amendment claim of prisoner who bit into a burrito containing a tooth); Pavon v. Madison Cnty. Sheriff, No. 4:07CV3020, 2007 WL 4570373, at *1-2 (D. Neb. Dec. 21, 2007) (finding no constitutional violation when prisoner was served a plate of food "contaminated with vermin or worms").
Furthermore, Burgess has alleged no facts suggesting that any Defendant knew there was a substantial risk that he would suffer serious harm from ingesting contaminated food and acted with deliberate indifference to that risk. See Farmer, 511 U.S. at 834. Therefore, he also has failed to establish the subjective component of an Eighth Amendment claim.
Burgess alleges that he has been unable to eat much of the food provided by Aramark since the incident and so is "forced" to live on items bought in the commissary. However, Burgess does not allege that any named Defendant actually refused to provide him with food that was nutritionally adequate following the incident with the reptile. The Eighth Amendment does not require the Defendants to give Burgess food from a different vendor or free commissary items merely because he has chosen to reject the food provided by Aramark because of his fears that a similar incident will happen in the future.
For the foregoing reasons, all of Burgess's claims under § 1983 are subject to dismissal for failure to state a claim.
The Sixth Circuit has held that a district court may allow a prisoner to amend his complaint to avoid a sua sponte dismissal under the PLRA. LaFountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013); see also Brown v. R.I., 511 F. App'x 4, 5 (1st Cir. 2013) (per curiam) ("Ordinarily, before dismissal for failure to state a claim is ordered, some form of notice and an opportunity to cure the deficiencies in the complaint must be afforded."). Leave to amend is not required where a deficiency cannot be cured. Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001) ("We agree with the majority view that sua sponte dismissal of a meritless complaint that cannot be salvaged by amendment comports with due process and does not infringe the right of access to the courts."). In this case, the Court concludes that leave to amend is not warranted.
In conclusion, the Court DISMISSES Burgess's § 1983 claims for failure to state a claim on which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Leave to amend is DENIED. Because all of the federal claims are being dismissed, the Court DECLINES to exercise supplemental jurisdiction over any claims arising under state law. Those state law claims are DISMISSED without prejudice pursuant to 28 U.S.C. § 1367(c)(3).
Pursuant to 28 U.S.C. §1915(a)(3), the Court must also consider whether an appeal by Burgess in this case would be taken in good faith. The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). The test for whether an appeal is taken in good faith is whether the litigant seeks appellate review of any issue that is not frivolous. Id. The same considerations that lead the Court to dismiss this case for failure to state a claim also compel the conclusion that an appeal would not be taken in good faith. Therefore, it is CERTIFIED, pursuant to 28 U.S.C. §1915(a)(3), that any appeal in this matter by Burgess would not be taken in good faith.
The Court must also address the assessment of the $505 appellate filing fee if Burgess nevertheless appeals the dismissal of this case. A certification that an appeal is not taken in good faith does not affect an indigent prisoner plaintiff's ability to take advantage of the installment procedures contained in § 1915(b). See McGore v. Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997), partially overruled on other grounds by LaFountain, 716 F.3d at 951. McGore sets out specific procedures for implementing the PLRA, §§ 1915(a)-(b). Therefore, Burgess is instructed that if he wishes to take advantage of the installment procedures for paying the appellate filing fee, he must comply with the procedures set out in the PLRA and McGore by filing an updated in forma pauperis affidavit and a current, certified copy of his inmate trust account for the six months immediately preceding the filing of the notice of appeal.
For analysis under 28 U.S.C. § 1915(g) of future filings, if any, by Burgess, this is the first dismissal of one of his cases as frivolous or for failure to state a claim. This "strike" shall take effect when judgment is entered. Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015).
The Clerk is directed to prepare a judgment. IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE