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. ...