Barrett v. Aramark Corporation et al, No. 4:2017cv04138 - Document 7 (C.D. Ill. 2017)

Court Description: MERIT REVIEW OPINION - Entered by Judge Harold A. Baker on 7/21/2017. See written Order. (Rule 16 Deadline 9/19/2017) The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountabil ity Act. Clerk is directed to terminate Defendants Aramark Corporation, Correctional Services LLC, and Food Service Director. The clerk is directed to attempt service on the defendants pursuant to the standard procedures. Plaintiff's motion for leave to proceed in forma pauperis 3 is granted. (LN, ilcd)

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Barrett v. Aramark Corporation et al Doc. 7 E-FILED Friday, 21 July, 2017 02:24:39 PM Clerk, U.S. District Court, ILCD UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS DONNIE R. BARRETT, Plaintiff, v. ARAMARK CORPORATION, et al. Defendants. ) ) ) ) ) ) ) ) ) 17-4138 MERIT REVIEW ORDER The plaintiff, proceeding pro se and currently civilly detained at the Rushville Treatment and Detention Facility (“Rushville”) is requesting leave to proceed under a reduced payment procedure for indigent plaintiffs who are institutionalized but are not prisoners as defined in 28 U.S.C. Section 1915(h). The “privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who, within the District Court’s sound discretion, would remain without legal remedy if such privilege were not afforded to them.” Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Circ. 1972). Additionally, a court must dismiss cases proceeding in forma pauperis “at any time” if the action is frivolous, malicious, or fails to state a claim, even if part of the filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this court grants leave to proceed in forma pauperis only if the complaint states a federal action. This case is before the court for a merit review of the plaintiff's claims. The court is required by 28 U.S.C. '1915A to Ascreen@ the plaintiff=s complaint, and through such process to identify and dismiss any legally insufficient claim, or the entire action if warranted. A claim is legally insufficient if it A(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. In reviewing the complaint, the Court accepts the factual allegations as true, liberally construing them in the plaintiff=s favor. Turley v. Rednour, 729 F.3d 645, 649 (7th Cir. 2013). However, conclusory statements and labels are insufficient. Enough facts must be provided to Astate a claim for relief that is plausible on its face.@ Alexander v. U.S., 721 F.3d 418, 422 (7th Cir. 2013)(citation omitted). The Court has reviewed the complaint and has also held a merit review hearing in order to give the plaintiff a chance to personally explain his claims to the Court. Plaintiff alleges that he has been placed on a vegetarian diet for medical reasons and that Defendant Dredge, the food supervisor, refused to feed him for a total of 38 days over the course of 2016. Plaintiff appears to be alleging that beans are the primary source of protein in vegetarian entrees and that he cannot eat them. Therefore, Plaintiff’s allegations suggest that the failure to provide a protein substitute given his inability to eat beans renders the meals nutritionally inadequate. Plaintiff’s rights arise under the Fourteenth Amendment’s due process clause rather than the Eighth Amendment. Burton v. Downey, 805 F.3d 776, 784 (7th Cir. 2015). The standards under the respective amendments are essentially the same. Id. Plaintiff has a right to “nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well-being of the [detainees] who consume it.” French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985). Plaintiff’s allegations, if true, state a plausible constitutional claim. No plausible inference arises from Plaintiff’s allegations that the deprivations Plaintiff suffered arose from an official policy or practice of Defendant Aramark Corporation or Defendant Correctional Services LLC. See Monell v. Dep’t of Social Srvcs of City of New York, 436 U.S. 658, 690 (1978). In addition, Plaintiff identifies Defendant Dredge as the food service director in his complaint. Therefore, Defendants Aramark, Correctional Services LLC, and Food Service Director will be dismissed. IT IS THEREFORE ORDERED that: 1. Pursuant to its merit review of the Complaint under 28 U.S.C. § 1915A, the court finds that the plaintiff states a Fourteenth Amendment claim for the alleged denial of a nutritionally adequate diet against Defendants Dredge, Scott, and Kunkel. Any additional claims shall not be included in the case, except at the court’s discretion on motion by a party for good cause shown or pursuant to Federal Rule of Civil Procedure 15. 2. This case is now in the process of service. The plaintiff is advised to wait until counsel has appeared for the defendants before filing any motions, in order to give the defendants notice and an opportunity to respond to those motions. Motions filed before defendants' counsel has filed an appearance will generally be denied as premature. The plaintiff need not submit any evidence to the court at this time, unless otherwise directed by the court. 3. The court will attempt service on the defendants by mailing each defendant a waiver of service. The defendants have 60 days from the date the waiver is sent to file an answer. If the defendants have not filed answers or appeared through counsel within 90 days of the entry of this order, the plaintiff may file a motion requesting the status of service. After the defendants have been served, the court will enter an order setting discovery and dispositive motion deadlines. 4. With respect to a defendant who no longer works at the address provided by the plaintiff, the entity for whom that defendant worked while at that address shall provide to the clerk said defendant's current work address, or, if not known, said defendant's forwarding address. This information shall be used only for effectuating service. Documentation of forwarding addresses shall be retained only by the clerk and shall not be maintained in the public docket nor disclosed by the clerk. 5. The defendants shall file an answer within 60 days of the date the waiver is sent by the clerk. A motion to dismiss is not an answer. The answer should include all defenses appropriate under the Federal Rules. The answer and subsequent pleadings shall be to the issues and claims stated in this opinion. In general, an answer sets forth the defendants' positions. The court does not rule on the merits of those positions unless and until a motion is filed by the defendants. Therefore, no response to the answer is necessary or will be considered. 6. This district uses electronic filing, which means that, after defense counsel has filed an appearance, defense counsel will automatically receive electronic notice of any motion or other paper filed by the plaintiff with the clerk. The plaintiff does not need to mail to defense counsel copies of motions and other papers that the plaintiff has filed with the clerk. However, this does not apply to discovery requests and responses. Discovery requests and responses are not filed with the clerk. The plaintiff must mail his discovery requests and responses directly to defendants' counsel. Discovery requests or responses sent to the clerk will be returned unfiled, unless they are attached to and the subject of a motion to compel. Discovery does not begin until defense counsel has filed an appearance and the court has entered a scheduling order, which will explain the discovery process in more detail. 7. Counsel for the defendants is hereby granted leave to depose the plaintiff at his place of confinement. Counsel for the defendants shall arrange the time for the deposition. 8. The plaintiff shall immediately notify the court, in writing, of any change in his mailing address and telephone number. The plaintiff's failure to notify the court of a change in mailing address or phone number will result in dismissal of this lawsuit, with prejudice. 9. If a defendant fails to sign and return a waiver of service to the clerk within 30 days after the waiver is sent, the court will take appropriate steps to effect formal service through the U.S. Marshals service on that defendant and will require that defendant to pay the full costs of formal service pursuant to Federal Rule of Civil Procedure 4(d)(2). 10. The clerk is directed to enter the standard qualified protective order pursuant to the Health Insurance Portability and Accountability Act. 11. Clerk is directed to terminate Defendants Aramark Corporation, Correctional Services LLC, and Food Service Director. 12. The clerk is directed to attempt service on the defendants pursuant to the standard procedures. 13. Plaintiff’s motion for leave to proceed in forma pauperis (#3) is granted. Entered this 21st day of July, 2017. /s/ Harold A. Baker _________________________________________ HAROLD A. BAKER UNITED STATES DISTRICT JUDGE

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