United States District Court, S.D. Indiana, Terre Haute Division
ENTRY SCREENING COMPLAINT, DISCUSSING PENDING
MOTIONS, AND DIRECTING PLAINTIFF TO SHOW CAUSE
Hon.
Jane Magnus-Stinson, Chief Judge
Defendants
Daniel Bedwell and Shirley Doe removed this action to this
Court from the Sullivan County Superior Court. Defendants
answered the complaint and alleged the affirmative defense of
failure to exhaust administrative remedies. Defendants'
motion for summary judgment filed in support of that defense
is now fully briefed and ripe for resolution. Before that
motion is addressed, however, the Court must screen the
complaint.
I.
Complaint
Although
the filing fee was paid at the time this action was removed
to this Court, this action is still subject to screening
under 28 U.S.C. § 1915A. “On review, the Court
shall identify cognizable claims or dismiss the complaint, or
any portion of the complaint, if the complaint--(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.” Id.
Plaintiff
Byron Johnson alleges in his complaint that on July 28, 2016,
while he was incarcerated at Wabash Valley Correctional
Facility, he was served a lunch tray on which he found a
“bloody soaked bandage.” He discovered it when he
chewed on it. Complaint, dkt. 1-1, p. 10. He reported this
problem to Sgt. Wilson, pictures were taken of the bandage,
and reports were written. Mr. Johnson asked for food from a
different “food source, ” specifically, a sack
lunch, but he was told that Aramark Head Mr. Bedwell told
staff to provide a different tray of food, which Mr. Johnson
was afraid to accept because he feared staff was trying to do
harm to him “due to previous grievances of offenders,
against Aramark staff, and their services.”
Id.
Mr.
Johnson alleges that Mr. Bedwell was grossly negligent in
hiring incompetent staff, Shirley Doe, and instead of fixing
the issue he told her to offer another tray of the
contaminated food. Mr. Johnson does not allege that Aramark
staff was aware that the bandage was on the tray at the time
it was served.
In
accordance with the protections provided by the Eighth
Amendment, prison officials must provide “humane
conditions of confinement” including “adequate
food, clothing, shelter, and medical care, and must take
reasonable measures to guarantee the safety of the
inmates.” Farmer v. Brennan, 511 U.S. 825, 832
(1994) (internal quotation omitted). “To determine
whether an inmate's Eighth Amendment rights were violated
by a deprivation, we examine the alleged violation both
objectively and subjectively. First, the deprivation alleged
must be objectively sufficiently serious. Second, the mental
state of the prison official must have been one of deliberate
indifference to inmate health or safety.” Haywood
v. Hathaway, 842 F.3d 1026, 1-31 (7th Cir. 2016). When
evaluating a claim involving inadequate food, “a court
must assess the amount and duration of the
deprivation.” Reed v. McBride, 178 F.3d 849,
853 (7th Cir. 1999).
Chewing
on a bloody bandage could be an objectively serious hazard,
however, the subjective element of deliberate indifference
and the extent of the alleged deprivation are dispositive in
evaluating Mr. Johnson's claim. In this case, Mr. Johnson
alleges a single incident of food contamination and no prior
notice on the part of Aramark staff of any bandage in the
food. Negligence, even gross negligence, does not violate the
Eighth Amendment. See Estate of Simpson v. Gorbett,
863 F.3d 740, 746 (7th Cir. 2017); Burton v. Downey,
805 F.3d 776, 785 (7th Cir. 2015). Mr. Johnson alleges no
subsequent incidents of contaminated food, which implies the
lack of a systemic problem and that measures were taken to
remedy the situation after the one time incident. (In his
tendered supplemental complaint, Mr. Johnson alleges only
that he was served a cold tv dinner during Passover and that
the dinner had been placed in the same cooler as other
non-religious meals).
In
Perez v. Sullivan, 100 Fed.Appx. 564 (7th Cir.
2004), the Seventh Circuit affirmed the dismissal of a
complaint in which the plaintiff alleged that he saw officers
serving unsanitary food, he was served spoiled milk which
made him violently ill, and food served to him and other
inmates contained objects such as rodent feces and a bloody
band-aid. Id. at 566. The Seventh Circuit agreed
that plaintiff failed to allege that the defendants
disregarded an excessive risk to the plaintiff's health
and that at best, his allegations amounted to negligence.
Id. There is no reason this case, alleging less
severe circumstances, should not be viewed the same way.
Although
Mr. Johnson was not satisfied with the offer to give him a
different tray of food, it is enough to defeat his Eighth
Amendment claim that the defendants reasonably responded to
his complaint and “did not disregard or fail to address
his specific problem.” Gates v. Huibregtse, 69
Fed.Appx. 326, 328 (7th Cir. 2003). In McRoy, an
inmate consumed undercooked bloody chicken and sour milk and
became sick afterward. McRoy v. Aramark Correctional
Services, Inc., 268 Fed.Appx. 479, 482 (7th Cir. 2008).
The Seventh Circuit held that because Aramark officials were
not aware of the spoiled food prior to serving it, there was
no Eighth Amendment violation. Id. Similarly, Mr.
Johnson does not allege prior knowledge on the part of the
defendants. For these reasons, Mr. Johnson's allegations
do not support the element of subjective deliberate
indifference on the part of the defendants. Therefore, Mr.
Johnson's Eighth Amendment claim must be dismissed for
failure to state a claim upon which relief can be granted.
The
Court has also considered Mr. Johnson's allegation that
he was afraid that prison staff were retaliating against him
“because of grievances against them, ” but he has
not alleged that he filed any grievance against
either defendant before filing this action. To state a First
Amendment retaliation claim, a plaintiff must allege that
“(1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely
deter First Amendment activity in the future; and (3) the
First Amendment activity was ‘at least a motivating
factor' in the Defendants' decision to take the
retaliatory action.” Bridges v. Gilbert, 557
F.3d 541, 546 (7th Cir. 2009); see Mays v.
Springborn, 719 F.3d 631, 635 (7th Cir. 2013). Here, Mr.
Johnson does not allege that he engaged in any protected
activity. Accordingly, his claim of retaliation is dismissed
for failure to state a claim upon which relief can be
granted.
Mr.
Johnson's complaint is dismissed for the reasons set
forth above. He shall have through November 10,
2017, in which to show cause why Judgment consistent
with this Entry should not issue. See Luevano v. Wal-Mart
Stores, Inc., 722 F.3d 1014, 1022 (7th Cir. 2013)
(“Without at least an opportunity to amend or to
respond to an order to show cause, an IFP applicant's
case could be tossed out of court without giving the
applicant any timely notice or opportunity to be heard to
clarify, contest, or simply request leave to amend.”).
II.
Pending Motions
The
defendants' motion for summary judgment on the issue of
failure to exhaust administrative remedies, dkt. [14], ...