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Smego v. Aramark Food Services Corp.

United States District Court, Seventh Circuit

May 13, 2013

RICHARD SMEGO, et al. Plaintiffs,


SUE E. MYERSCOUGH, District Judge.

Plaintiffs, proceeding pro se, are detained in the Rushville Treatment and Detention Center. Plaintiffs allege that the food served at the Center is not fit for human consumption. They further allege that the food is improperly stored and is prepared and served under unsanitary conditions. Plaintiffs also pursue a retaliation claim, but that claim remains undeveloped.

The parties have filed summary judgment motions, focusing primarily on the serving of "mechanically separated chicken" to Plaintiffs. After reviewing the submissions, the Court concludes that too many questions remain for the Court to determine whether this practice violates Plaintiffs' due process rights to adequate food. Additionally, Plaintiff's other allegations of spoiled and unsanitary food support a due process claim regardless of the mechanically-separated-chicken debate. These claims will proceed to trial against Defendants Aramark, Dredge, and Ashby. The current director of the facility will be added in his or her official capacity for purposes of injunctive relief. Defendants Kibby and McAdory will be dismissed because no evidence suggests that they bear personal responsibility for the claimed constitutional deprivations. Lastly, Plaintiffs retaliation claims, to the extent they pursue any, will be dismissed.


"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A movant may demonstrate the absence of a material dispute through specific cites to admissible evidence, or by showing that the nonmovant "cannot produce admissible evidence to support the [material] fact." Fed.R.Civ.P. 56(c)(B). If the movant clears this hurdle, the nonmovant may not simply rest on his or her allegations in the complaint, but instead must point to admissible evidence in the record to show that a genuine dispute exists. Id .; Harvey v. Town of Merrillville , 649 F.3d 526, 529 (7th Cir. 2011). "In a ยง 1983 case, the plaintiff bears the burden of proof on the constitutional deprivation that underlies the claim, and thus must come forward with sufficient evidence to create genuine issues of material fact to avoid summary judgment." McAllister v. Price , 615 F.3d 877, 881 (7th Cir. 2010). At the summary judgment stage, evidence is viewed in the light most favorable to the nonmovant, with material factual disputes resolved in the nonmovant's favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A genuine dispute of material fact exists when a reasonable juror could find for the nonmovant. Id.


Plaintiffs have been civilly committed pursuant to the Illinois Sexually Violent Persons Act. This means that each Plaintiff has finished serving his criminal sentence, but, instead of being released, he has been detained indefinitely in a secure DHS facility for treatment because he has been found beyond a reasonable doubt to suffer from a "mental disorder that makes it substantially probable that [he] will engage in acts of sexual violence." 725 ILCS 207/35(d)(1); 725 ILCS 207/5(f). A detainee under this Act may petition for conditional release annually, but conditional release is granted only if enough progress in treatment has been made that the detainee is no longer substantially probable to engage in acts of sexual violence if on conditional release...." 725 ILCS 207/60.

Plaintiff Smego has been civilly committed to DHS custody since December 2005. See Smego v. Phillips, et al., 09-cv-3177 (Complaint, para. 3, p. 6). Plaintiffs Hoover and Hyatt have been civilly committed to DHS custody since 2001. In re Commitment of Hoover, 2011 Ill.App.3d 100488 (3rd Dist)(not reported in N.E.2d); In re the Commitment of Hyatt, 2011 MR 56 (Vermillion County, 4/24/01 order). The Court was unable to find Plaintiff Schloss' date of commitment to DHS custody.

Plaintiffs reside in the Rushville Treatment and Detention Center in Rushville, Illinois, a facility operated by the Illinois Department of Human Services ("DHS"). Defendant McAdory was the security director at the facility during some of the relevant time frame. Defendant Alfreda Kibby was the facility's program director during some of the relevant time frame. Defendant Forrest Ashby was the facility's director until recently.

Defendant Aramark Correctional Services, LLC ("Aramark") provides food service at the facility pursuant to a contract with DHS. That contract requires Aramark to provide daily "three balanced meals" and to "assure meals provide a sufficient variety...: flavor, texture, and color balance; seasonal menus...; avoidance of repetitious servings." (Aramark-IDHS Contract, d/e 422-6, Food Preparation Section, p. 6, paras. 4, 6.) The contract also requires Aramark to "ensure that all meats meet the USDA specifications and that all raw foods used shall conform to the following specifications:... pork and poultry-USDA grade A." Id. at para. 3. The contract requires the menus to be reviewed and certified by a registered dietitian and to be "rotated so as to avoid repetition. Id. at paras. 4, 10.

Defendant Steve Dredge is an Aramark employee, working as a food services supervisor at the facility. Defendant Dredge does not create the meal plans. Rushville residents cook, prepare, and serve the food under the supervision of Aramark employees.

At the time Plaintiffs filed this Complaint, Aramark was serving "mechanically separated chicken" from boxes labeled "for further processing only." According to the United States Department of Agriculture, "mechanically separated poultry" is:

A paste-like and batter-like meat product produced by forcing bones with attached edible meat under high pressure through a sieve or similar device to separate the bone from the edible meat tissue.

(USDA Meat and Poultry Labeling Terms, d/e 420-8, p. 2). 9 C.F.R. Section 381.173(a) similarly describes mechanically separated poultry as "any product resulting from the mechanical separation and removal of most of the bone from attached skeletal muscle and other tissue of poultry carcasses and parts of carcasses that has a paste-like form and consistency, that may or may not contain skin with attached fat...." Plaintiffs believe that the mechanically separated chicken packaged in boxes marked for further processing only were not fit for human consumption under federal regulations. The box in which the mechanically separated chicken comes in no longer states "for further processing only, " but Plaintiffs still maintain that the chicken is not fit for eating, at least not how Defendants prepare it.

The mechanically separated chicken is apparently used as a ground beef substitute at the facility, cooked in water and then used as the sole meat source in meals like spaghetti sauce, biscuits and gravy, meatloaf, tacos, and casseroles. (Dredge Dep. pp. 18-24.) The mechanically separated chicken is used as the sole meat source in at least six meals a week. Id. at p. 56.

Defendants McAdory, Kibby, and Ashby (the "DHS Defendants") do not purchase the food, prepare the food, clean the kitchen, or supervise any of these tasks. The DHS Defendants responded to complaints about the mechanically separated chicken by asking Aramark representatives about the chicken, who then informed the DHS ...

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