United States District Court, Western District of Michigan, Northern Division
GORDON J. QUIST UNITED STATES DISTRICT JUDGE
This is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. The Court has granted Plaintiff leave to proceed in forma pauperis. Under the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). The Court must read Plaintiff’s pro se amended complaint (docket #17) indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (1972), and accept Plaintiff’s allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992). Applying these standards, the Court will dismiss Plaintiff’s due process claims against Defendants Lesatz, Walbridge, DeLisle, Lettinosen and Aramark Correctional Services, Inc. The Court, however, will serve Plaintiff’s Eighth Amendment claims against Defendants Lesatz, Walbridge, DeLisle, Lettinosen and Aramark Correctional Services, Inc.
I. Motion for Reconsideration
On October 24, 2014, after screening Plaintiff’s original complaint (docket #1) as required by the Prison Litigation Reform Act, the Court issued an Opinion and Order for Partial Dismissal and for Partial Service (docket ##11, 12). Plaintiff then filed a motion for reconsideration (docket #14) asserting new allegations against certain Defendants. On December 4, 2014, the Court ordered Plaintiff’s motion for reconsideration to be held in abeyance until Plaintiff filed an amended complaint on the form. Because Plaintiff complied with the Court’s Order by filing an amended complaint, the Court will grant Plaintiff’s motion for reconsideration to the extent Plaintiff seeks to vacate this Court’s October 24, 2014 Opinion and Order for Partial Dismissal and for Partial Service. The Court will also vacate the October 24, 2014 Opinion and Order for Partial Dismissal and for Partial Service. Finally, the Court will screen Plaintiff’s amended complaint (docket #17) herein.
Plaintiff presently is incarcerated at the Alger Correctional Facility but complains of events that occurred at the Baraga Maximum Correctional Facility. In his pro se amended complaint, Plaintiff sues Acting Deputy Warden Dan Lesatz, Food Service Supervisor Rob Walbridge, Aramark Correctional Services, Inc. (Aramark), Acting Food Service Director Michael DeLisle and Food Service Director Dan Lettinosen.
Plaintiff complains that the meals served by Aramark are nutritionally inadequate, spoiled, undercooked, watered-down and have made Plaintiff violently ill. On December 18, 2013, Plaintiff alleges that he was served spoiled hamburger meat, moldy bread, cold noodles and gravy, and a bruised orange. Plaintiff requested another meal tray but he was told that the kitchen was closed. On December 19, 2013, Plaintiff was served moldy bread, a rotten orange, cold spaghetti noodles and spinach, and warm milk. When he requested a new tray, the Michigan Department of Corrections (MDOC) denied his request because the kitchen was closed.
On December 20, 2013, Plaintiff filed a grievance regarding the December 18 and 19, 2013, food incidents. Plaintiff states that Defendant Walbridge denied Plaintiff’s Step I grievance in an untimely response according to MDOC Policy Directive 03.02.130 “Prisoner/Parolee Grievances” (effective July 9, 2007). Plaintiff appealed the denial of his grievance to Step II but Defendant Lesatz denied Plaintiff’s Step II appeal and refused to correct the food problems. Plaintiff appealed the grievance to Step III but it was denied.
On August 12, 2014, Plaintiff, who works in the kitchen, noticed that the oatmeal was watered down and several trays had moldy bread. Plaintiff also found that the food trays had leftover food from the night before on them. Plaintiff called for new trays but the food on the replacement trays had the same problems. On August 13, 2014, Plaintiff checked the food carts again and found watered-down Ralston and jelly, and moldy toast. Although Plaintiff requested new trays, food service never sent them. Plaintiff then filed another grievance about the food.
On August 19, 2014, Plaintiff wrote an urgent kite to healthcare services, complaining of an upset stomach, frequent bowel movements and vomiting. Although Plaintiff was placed on call-out to see a nurse, Plaintiff’s appointment was canceled. Plaintiff continued to be sick with a high fever, upset stomach, nausea and bloody bowel movements for the next two days. Plaintiff was finally seen by a nurse ten days after his kite.
In September 2014, Plaintiff, as block representative for his prison unit, wrote to Food Service Director DeLisle and other MDOC personnel regarding the preparation, sanitation and lack of quality of the food. When he did not hear from DeLisle, Plaintiff sent kites to Food Service Supervisor Lettinosen, Assistant Deputy Warden Lesatz and DeLisle on September 14, 2014, concerning the sanitation of the food trays, constant food shortages and the incorrect diet trays. (Am. Compl., docket #17, Page ID#142.) Plaintiff never received a response.
On October 18, 2014, Plaintiff alleges that he was served a tray of chicken salad with leftover gravy from a meal on October 12, 2014, bread, baked beans, spinach, a piece of cake without any frosting and an orange drink. Plaintiff requested another tray but was told by a corrections officer, whom Plaintiff does not name as a Defendant in his amended complaint, that if Plaintiff agreed not to sue Aramark, Plaintiff would not be served a “messed[-]up” tray. (Id., Page ID#144.) Plaintiff filed a grievance regarding the October 18, 2014 incident.
Plaintiff alleges that Defendant Aramark violated his Fifth, Eighth and Fourteenth Amendment rights by providing rotten food to Plaintiff. (Id., Page ID#146.) Plaintiff also claims that Defendants Lesatz, DeLisle, Walbridge and Lettinosen violated his Eighth Amendment rights by failing to address the violations by Aramark and its employees. Plaintiff further alleges that Defendants Lesatz, DeLisle, Walbridge and Lettinosen violated his Fifth and Fourteenth Amendment rights by failing to respond to Plaintiff’s grievances, complaints and kites regarding the food problems. (Id., Page ID#144.) Moreover, Plaintiff claims that Defendants Lesatz, DeLisle, Walbridge and Lettinosen violated Plaintiff’s Fifth, Eighth and Fourteenth Amendment rights by failing “in their duties concerning [Operating Procedure] 04.07.103, ” “Response to Food Service Sanitation/Inspection Reports, ” and allowing employees to violate MDOC Policy Directive 04.07.102 “Food Quality Assurance” ...