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June 16, 2004.

JAMES McROY, Plaintiff,

The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge


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. ¶¶ 23, 25.)


  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. ...

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