United States District Court, N.D. Illinois, Eastern Division
June 16, 2004.
JAMES McROY, Plaintiff,
MICHAEL SHEAHAN, ERNESTO VELASCO, JOHN MAUL, ARAMARK CORRECTIONAL SERVICES, INC. AND JOHN/JANE DOES 1-10, Defendants.
The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
On October 3, 2003, Plaintiff James McRoy ("McRoy") filed a
two-count amended complaint against the Sheriff of Cook County,
Michael Sheahan ("Sheahan"), and the food provider at the jail,
Aramark Correctional Services, Inc. ("Aramark"). [Dkt 5.] Twelve
other individuals were named as defendants, Ernesto Velasco
(Executive Director of Cook County Jail), John Maul (Assistant
Executive Director of Cook County Jail), John/Jane Does 1-5
(employees of the Cook County Jail or the Sheriff's Department)
and John/Jane Does 6-10 (employees of Aramark), but none of them
have been served with process.*fn1 In his amended complaint, McRoy states that: (1) he has a claim
under 42 U.S.C. § 1983 because the defendants violated his rights
under the Eighth Amendment of the Constitution when they served
him uncooked or rotten food on two occasions and spoiled milk on
one occasion; and (2) Aramark acted negligently when it served
and/or failed to inspect the allegedly uncooked or rotten food
and spoiled milk. (Am. Compl. ¶¶ 12-35.) Sheahan and Aramark have
each moved to dismiss McRoy's claims under Federal Rule of Civil
Procedure 12(b)(6).*fn2 [Dkt 13, 14.] For the reasons set
out below, the defendants' motions are granted; however, McRoy is
given leave to file a second amended complaint against Sheahan in
his official capacity and against Aramark pursuant to § 1983 and
to restate his negligence claim against Aramark.
Federal jurisdiction exists under 28 U.S.C. § 1331 (federal
question jurisdiction) and 28 U.S.C. § 1367 (supplemental
jurisdiction). In this case, federal question jurisdiction is
proper as to Count I because it specifically invokes
42 U.S.C. § 1983, and supplemental jurisdiction is proper as to Count II
because it is a related state law claim of negligence. The
parties have consented to the jurisdiction of a Magistrate Judge.
[Dkt 16, 17, 18.]
The following facts, taken from McRoy's amended complaint, are
assumed to be true for purposes of this opinion. See Bontkowski v. First Natl. Bank of
Cicero, 998 F.2d 459, 461 (7th Cir. 1993). McRoy is and was at
all relevant times incarcerated in the custody of the Cook County
Department of Corrections. ("CCDOC"). (Am. Compl. ¶ 4.) On or
about March 11, 2003, while he was confined in the CCDOC, McRoy
was served uncooked chicken and ate a small portion of the
chicken before he became aware of its uncooked state. (Am. Compl.
¶¶ 13, 14.) The next day. McRoy became ill from consuming the
uncooked chicken and was ill for approximately one week. (Am.
Compl. ¶ 16.) According to McRoy, he told two employees of the
Cook County Sheriff's Department (John Does 2 and 3) about the
uncooked chicken. (Am. Compl. ¶ 15.) McRoy further alleges that,
on or about March 25, 2003, he was served a spoiled turkey
sandwich and ate a portion of the sandwich before he was informed
by other inmates that the sandwich was rotten. (Am. Compl. ¶¶ 17,
18.) McRoy claims that he sent a letter to John Maul, the
Assistant Executive Director of the CCDOC, and filed an internal
grievance regarding the spoiled sandwich. (Am. Compl. ¶¶ 19, 20.)
However, McRoy has not alleged that he became ill from eating the
turkey sandwich. McRoy further asserts that, on or about July 15,
2003, he was served spoiled milk and drank a good part of the
milk before he realized that it was spoiled. (Am. Compl. ¶¶ 21,
22.) McRoy subsequently became Ill. (Am. Compl. ¶ 24.) According
to McRoy, he immediately informed an employee of the Cook County
Sheriff's Department (John Doe 4) that the milk was spoiled, and
he filed a grievance regarding the spoiled milk. (Am. Compl. ¶¶
When considering a motion to dismiss, the court must assume the
truth of all facts alleged in the complaint, construing the
allegations liberally and viewing them in the light most
favorable to the plaintiff. Wilson v. Formigoni, 42 F.3d 1060, 1062 (7th
Cir. 1994); Harrell v. Cook, 169 F.3d 428, 431 (7th Cir. 1999).
Dismissal is properly granted if "it is clear that no relief
could be granted under any set of facts that could be proved
consistent with the allegations." Cushing v. City of Chicago,
3 F.3d 1156, 1159 (7th Cir. 1993) (quotation omitted). "In other
words, if it is possible to hypothesize a set of facts,
consistent with the complaint, that would entitle the plaintiff
to relief, dismissal under Rule 12(b)(6) is inappropriate."
Veazey v. Communications & Cable of Chicago, Inc.,
194 F.3d 850, 854 (7th Cir. 1999). McRoy's claim of deliberate
indifference is not subjected to any heightened pleading
standard. Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168 (1993); Thomson v.
Washington, 362 F.3d 969, 971 (7th Cir. 2004). However, the
plaintiff must still allege enough in his complaint to "allow the
court and the defendant[s] to understand the gravamen of the
plaintiff's complaint." Payton v. Rush-Presbyterian-St. Luke's
Med. Ctr., 184 F.3d 623, 627 (7th Cir. 1999) (quoting Doherty
v. City of Chicago, 75 F.3d 318, 326 (7th Cir. 1996)).
1. McRoy's Claim Under 42 U.S.C. § 1983.
In order to state a cause of action under 42 U.S.C. § 1983, the
plaintiff must allege that some person, acting under color of
state law, has deprived him of a federal right. Alvarado v.
Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (citing Gomez v.
Toledo, 446 U.S. 635, 640 (1980)). Sheahan and Aramark argue,
for different reasons, that McRoy has failed to state a § 1983
claim. Aramark asserts that McRoy has failed to allege a
constitutional violation. Sheahan argues that McRoy has failed to
state a claim against Sheahan acting either in his official
capacity or as an individual. A. Allegation of a Constitutional Violation.
Claims by pretrial detainees alleging unconstitutional
conditions of confinement are governed by the Fourteenth
Amendment Due Process Clause rather than the Eight Amendment's
prohibition against cruel and unusual punishment.*fn3
Anderson v. Gutschenritter, 836 F.2d 346, 348-49 (7th Cir.
1988). See also Drake v. Velasco, 207 F. Supp.2d 809, 812
(N.D. Ill. 2002). However, "[t]he standard for analyzing a
pretrial detainee's Fourteenth Amendment due process claim is
identical to the standard employed in evaluating a convicted
inmate's Eighth Amendment claim of cruel and unusual punishment."
Id. (quotation omitted). See also Shelby County Jail Inmates
v. Westake, 798 F.2d 1085, 1094 (7th Cir. 1986).
The Supreme Court has held that prison officials have a duty
under the Eighth Amendment to provide humane conditions of
confinement: they must ensure adequate food, clothing, shelter
and medical care, and must take reasonable measures to guarantee
the safety of inmates. Farmer v. Brennan, 511 U.S. 825, 832
(1994). As a contractor performing the public function of running
a jail. Aramark is acting under the color of state law and is
treated the same as a municipality for purposes of § 1983. See
Woodward v. Correctional Med. Servs. of Illinois, Inc., F.3d,
No. 03-3147, 2004 WL 1088310 at * 12 n. 1 (7th Cir. May 17, 2004)
(Evans, J.). In order to state a viable conditions-of-confinement
claim, an inmate must show that: (1) the conditions were
objectively serious enough to pose a substantial risk of serious
harm; and (2) that the prison official's state of mind was one of
"deliberate indifference." Farmer, 511 U.S. at 834. See also
Summers v. Sheahan, 883 F. Supp. 1163, 1167 (N.D. Ill. 1995). Those elements have also been
described as the "objective component" and the "subjective
component." Miles v. Konvalenka, 791 F. Supp. 212, 213 (N.D.
Ill. 1992) (citing Wilson v. Seiter, 501 U.S. 294 (1991)). The
objective component examines the gravity of the alleged
deprivation. Id. (citing Hudson v. McMillian, 503 U.S. 1
(1992)). The subjective component looks at the state of mind of
the prison officials alleged to have violated the plaintiff's
rights with cruel and unusual punishments. Id.
i. Conditions Imposing Substantial Risk of Serious Harm.
The first inquiry is whether serving uncooked or rotten food on
two occasions and spoiled milk on one occasion poses a
"substantial risk of serious harm." Farmer, 511 U.S. at 834.
The Seventh Circuit has indicated that "[a] well-balanced meal,
containing sufficient nutritional value to preserve health, is
all that is required." Lunsford v. Bennett, 17 F.3d 1574, 1580
(7th Cir. 1994) (quotation omitted). The Eighth Amendment is not
violated so long as inmates are provided nutritionally adequate
food that is prepared and served under conditions which do not
present immediate danger to the health or well-being of the
inmates who consume it. French v. Owens, 777 F.2d 1250, 1255
(7th Cir. 1985). Cold meal breakfasts instead of hot cereal do
not implicate any constitutional rights. Pritchett v. Page, No.
99 C 8174, 2002 WL 1838150 at *5 (N.D. Ill. Aug. 12, 2002)
(Nordberg, J.) (citing Lunsford, 17 F.3d at 1579). Similarly,
food that "occasionally contains foreign objects or sometimes is
served cold, while unpleasant, does not amount to a
constitutional deprivation" (Hamm v. DeKalb County,
774 F.2d 1567, 1575 (11th Cir. 1985)), and cold meals served on trays with
food from previous meals does not amount to a constitutional
violation without an allegation that the plaintiff suffered any
harm. Vinegar v. Fairman, No. 95 C 844, 1995 WL 769758 at *6 (N.D. Ill. Dec. 29, 1995) (Kocoras, J.). Even a dead
mouse in an inmate's meal is only a minimal deprivation without a
showing of injury. Miles, 791 F. Supp. at 214. In contrast, it
has been found that the constant presence of contaminants rises
to constitutional levels (Pritchett v. Page, No. 99 C 8174,
2000 WL 1129891 at *5 (N.D. Ill. Aug. 9, 2000) (Nordberg, J.)),
and the provision of vermin infested food "certainly rises to the
level of a constitutional infraction" (Summers, 883 F. Supp. at
1170; Wysinger v. Sheahan, No. 94 C 513, 1995 WL 407381 at *7
(N.D. Ill. July 5, 1995) (Castillo, J.)). See also Drake,
207 F. Supp.2d at 812 (finding that plaintiff sufficiently alleged
presence of contaminants in his food so as to constitute a
In this case, McRoy alleges that he was served uncooked chicken
and became ill for approximately one week, and that he was served
and became ill from drinking spoiled milk. Those alleged
deprivations are serious enough to meet the objective standard
for purposes of defeating a motion to dismiss.*fn4
ii. Deliberate Indifference.
An official is deliberately indifferent when he "knows of and
disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference." Farmer, 511 U.S. at 837. In other
words, to state a claim under the Eighth Amendment, McRoy would
need to allege that the defendants, including Aramark, either
knew of and disregarded the fact that uncooked food and spoiled
milk were being routinely served endangering the health of
prisoners, or were aware of facts from which an inference could
be drawn that a substantial risk of harm exists and in fact drew
In his amended complaint, McRoy alleges that the defendants
acted with "deliberate indifference." (Am. Compl. ¶ 28.) McRoy
also claims that he informed a number of the Sheriff's employees
about the uncooked food and spoiled milk and that he filed two
grievances. (Am. Compl. ¶¶ 15, 19, 20, 23, 25.) Although McRoy's
amended complaint lacks any allegation that he informed Aramark
or an employee of Aramark about the quality of the food or his
alleged illnesses, McRoy does allege that he complained through
the required administrative processes. It appears that McRoy
conceivably could allege, consistent with the allegations
contained in the amended complaint, that Aramark had knowledge or
was put on notice of the uncooked and rotten food or spoiled milk
and the endangering of prisoners' health. Accordingly, the claim
against Aramark under § 1983 will be dismissed without prejudice
and with leave to amend to allow McRoy to allege, if he chooses
to do so, that, through his administrative grievances and
complaints (and any other means that McRoy can allege), Aramark
had the requisite state of mind to support a claim under § 1983.
As discussed below, it must also allege a policy or practice
violating McRoy's constitutional rights. B. McRoy's Complaint Fails to Allege Whether He is Suing
Sheahan in His Official Capacity or as an Individual.
In his amended complaint, McRoy alleges that Sheahan "is and
[was] at all times referenced hereto the Sheriff of Cook County."
(Am. Compl. ¶ 5.) McRoy does not specify whether he is suing
Sheahan in his individual or official capacity. Sheahan's motion
addresses both an official capacity claim and an individual
capacity claim, and it also raises the defense of qualified
immunity, a defense that is only applicable in an individual
capacity suit.*fn5 Although the Seventh Circuit has created
a presumption that a § 1983 claim against a public official is an
official capacity suit, that presumption is not conclusive.
Conner v. Reinhard, 847 F.2d 384, 394 n. 8 (7th Cir. 1988)
(citing Kolar v. County of Sangamon, 756 F.2d 564, 568 (7th
Cir. 1985) and Duckworth v. Franzen, 780 F.2d 645, 649 (7th
Cir. 1985)). A court must also consider the manner in which the
parties have treated the suit. Id. (citing Shockley v. Jones,
823 F.2d 1068, 1071 (7th Cir. 1987)). McRoy's response to
Sheahan's motion does not clarify the issue or address Sheahan's
arguments relating to an official capacity claim. In his response
to Sheahan's motion, McRoy argues that Sheahan is the Sheriff of
Cook County and "as such" is in charge of the operation of the
Cook County Jail, although that is not alleged in the amended
complaint. However, at the oral argument on the defendants'
motions, McRoy's counsel indicated that his claim was against
Sheahan in both his official capacity and individual capacity. In
light of that unclear backdrop, McRoy's claim will be considered
as against Sheahan in both his official and individual
capacity.*fn6 i. Individual Capacity.
In order to state a claim for individual liability under §
1983, a plaintiff must allege that the defendant was personally
involved in the deprivation of his constitutional rights.
Whitford v. Boglino, 63 F.3d 527, 530-31 (7th Cir. 1995). See
also Wolfe-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.
1983) (a government official may not by liable in his individual
capacity unless he caused or participated in the alleged
wrongdoing). Such personal responsibility exists if the conduct
causing a constitutional deprivation occurred at the defendant's
direction or with his knowledge and consent. Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (citing Smith v.
Rowe, 761 F.2d 360, 369 (7th Cir. 1985)). Put another way, a
defendant must be aware of the conduct, somehow enable it,
approve of it, or pretend it does not exist. Hudson v. Sheahan,
No. 99 C 8109, 2000 WL 765065 at *3 (N.D. Ill. June 9, 2000)
(Kocoras, J.) (citing Jones v. City of Chicago, 856 F.2d 985,
992 (7th Cir. 1988)). Thus, "some causal connection or
affirmative link between the action complained about and the
official sued is necessary for § 1983 recovery." Gentry, 65
F.3d at 561 (citation omitted).
In this case, there is no affirmative link between Sheahan and
the service of uncooked food or spoiled milk at the CCDOC. There
is no allegation that Sheahan had any personal involvement in
food service at the CCDOC, or that McRoy's constitutional injury
was caused at Sheahan's direction, or with his knowledge or
consent. In fact, McRoy states that Aramark is "responsible for
food service" at the CCDOC. (Am. Compl. ¶ 31.) "[A] plaintiff can
plead himself out of court by alleging facts which show that he
has no claim, even though he was not required to allege those
facts." Jackson v. Marion County, 66 F.3d 151, 153 (7th
Cir. 1995). Although McRoy claims that he informed John Does 2
and 3, employees of the Cook County Sheriff's Department about
the uncooked chicken, and John Doe 4, another employee of the
Cook County Sheriff's Department. about the spoiled milk (Am. Compl. ¶¶ 9, 23), there is no
liability under § 1983 based on the doctrine of respondeat
superior. Vance v. Peters, 97 F.3d 987, 993 (7th Cir. 1996)
(citation omitted); see also Fisher v. Sheahan, No. 01 C 9085,
2002 WL 3107915 at *2 (N.D. Ill. Sept. 9, 2002) (Guzman, J.)
(citing Pacelli v. deVito, 972 F.2d 871, 877 (7th Cir. 1992)).
In Antonelli v. Sheahan, 81 F.3d 1422, 1429, 1432 (7th Cir.
1996), the court, discussing a pro se prisoner complaint, held
that Sheriff Sheahan could be held personally liable for
systematic, as opposed to localized, violations, such as the
provision of "nutritionally deficient" food at the CCDOC. The
court observed that the Sheriff, like the Director of the
Department of Corrections, was "far from most of the day-to-day
decisions that may have affected inmates." Id. at 1428.
"However, Sheriff Sheahan and Director Fairman can be expected to
know of or participate in creating systemic, as opposed to
localized, situations." Id. at 1429. Therefore, the court
stated, it was necessary to sort the claims into clearly
localized and potentially systemic, dismissing the former as to
the Sheriff. Id. In this case, however, McRoy has not alleged
that the food served at the CCDOC was "nutritionally deficient"
as a matter of course. Rather, he has alleged three incidents of
uncooked or rotten food or spoiled milk. The court in Antonelli
distinguished the potentially systemic claim of a "nutritionally
deficient" diet from an allegation of "ransid food [sic]." Id.
at 1432. In addition, as discussed above, McRoy has specifically
plead that Aramark is "responsible for food service" at the
CCDOC, (Am. Compl. ¶ 31.) Thus, Sheahan personally cannot
"realistically be expected to be personally involved" in the
state of the food served at the CCDOC, Antonelli, 81 F.3d at
Thus, the motion to dismiss the complaint as against Sheahan in
his individual capacity is granted with prejudice. See Miles,
791 F. Supp. at 214 (dismissing § 1983 action with prejudice when there was "no indication that officials knew of any severe
infestation problem in the prison kitchen").
ii. Official Capacity.
A claim against a government employee acting in his official
capacity is the same as a suit directed against the entity the
official represents. Monell v. New York City Dept. of Soc.
Servs., 436 U.S. 658, 690 n. 55 (1978). The State is not a
"person" that can be sued under § 1983. Will v. Michigan Dept.
of St. Police, 491 U.S. 58, 64 (1989). However, municipalities
and other local subdivisions of the State are "persons" who may
be sued under § 1983. Monell, 436 U.S. at 690. Under Illinois
law, sheriffs are classified as county officials, and when the
sheriff "performs his duties as the principal executive officer
or chief law enforcement officer of the county," he is a suable
entity under § 1983. Richman v. Sheahan, 270 F.3d 430, 439 (7th
Cir. 2001) (citing Scott v. O'Grady, 975 F.2d 366, 371 (7th
Cir. 1992)); Ruffino v. Sheahan, 218 F.3d 697, 700 (7th Cir.
Because a claim against a municipality brought under § 1983
cannot survive under a theory of respondeat superior (Monell,
436 U.S. at 691; Wolf-Lillie, 699 F.2d at 869), a plaintiff
must show that the alleged violation by the municipality resulted
from policy or a practice so "permanent and well settled" that it
constitutes a custom or usage of that entity. Monell, 436 U.S.
at 691 (quotation omitted). A civil rights deprivation by way of
policy can be pleaded in three ways:
(1) an express policy that, when enforced, causes a
constitutional deprivation . . .; (2) a widespread
practice that, although not authorized by written law
or express municipal policy, is so permanent and well
settled as to constitute a custom or usage with the
force of law . . .; or (3) an allegation that the
constitutional injury was caused by a person with
final policymaking authority.
Hudson, 2000 WL 765065 at *3 (quoting Baxter by Baxter v. Vigo
County Sch. Corp., 26 F.3d 728
, 734-35 (7th Cir. 1994)). The existence of an unconstitutional
policy can be demonstrated by proving a sequence of bad acts
which lead to the inference that the government policymakers
should have known what was happening, and by virtue of their
inaction, adopted the misconduct of the lower-level officers.
Jackson, 66 F.3d at 152.
The same requirement applies to a corporate entity performing
the public function of providing services in a jail.
[A] corporate entity violates an inmate's
constitutional rights "if it maintains a policy that
sanctions the maintenance of prison conditions that
infringe upon the constitutional rights of the
prisoners." "This liability is not founded on a
theory of vicarious liability or respondeat
superior that holds a municipality responsible for
the misdeeds of its employees. Rather a municipal
policy or practice must be the `direct cause' or
`moving force' behind the constitutional violation."
Woodward, 2004 WL 1088310 at *9 (footnote and internal
In this case, Sheahan correctly points out that McRoy has not
expressly alleged any policy or custom as required by the
Monell and Baxter decisions. However, McRoy alleges that he
was served uncooked or spoiled food on two occasions and spoiled
milk on one occasion over a period of four months. Applying the
standards applicable to a motion to dismiss, it cannot be said
that it would be impossible for McRoy to allege the policy or
practice necessary to state a claim under § 1983 against Aramark
or against Sheahan in his official capacity.
Accordingly, the motions to dismiss the claims under § 1983
against both Aramark and against Sheahan in his official capacity
are granted; however, McRoy may file a second amended complaint
by July 7, 2004 expressly articulating any claimed policy,
practice or custom that resulted in an alleged constitutional
violation. 2. McRoy's Negligence Claim Against Aramark.
Because McRoy's federal claims have been dismissed (although
with leave to replead), this court has the discretion to address
or to remand to state court the supplemental state claim of
negligence. Payne v. Churchich, 161 F.3d 1030, 1043 (7th Cir.
1998). In light of the fact that McRoy has been given leave to
replead the federal claims in a second amended complaint to be
filed on or before July 7, 2004, Aramark's motion to dismiss the
negligence claim will be granted without prejudice. In the event
that McRoy files a second amended complaint, he may include the
negligence claim under the court's supplemental jurisdiction.
For the reasons set forth above, Sheahan's motion to dismiss is
granted with prejudice as to the claim against him as an
individual and without prejudice as to the claim against him in
his official capacity. Aramark's motion to dismiss is granted
without prejudice. McRoy is granted leave to file a second
amended complaint curing the deficiencies discussed in this
opinion on or before July 7, 2004.
IT IS SO ORDERED.