United States District Court, W.D. Michigan, Southern Division
T. Neff, United States District Judge.
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 complaint 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, Plaintiff's action will be dismissed for
failure to state a claim.
Robert Foster presently is incarcerated at the Ionia
Correctional Facility (ICF). He sues Mr. (unknown) Shouse,
the ICF Food Service Manager for Trinity Services Group.
alleges that Defendant Shouse, as food service manager, was
responsible for allowing dirty food trays to be sent to
Plaintiff. Specifically, Plaintiff contends that, on August
8, 2016, he was served a breakfast meal on a tray that was
dirty. Plaintiff complained to Sergeant Greenfield about the
dirty tray. Greenfield informed Plaintiff that the food on
the tray would be discarded in the trash. Plaintiff, however,
had already consumed the food. He asserts that Trinity Food
Service, under the management of Defendant Shouse, should not
have allowed the food to be served on a dirty tray. Plaintiff
alleges that he suffered mental anguish from being forced to
choose between eating food from a contaminated tray or going
alleges that he sought medical treatment to determine whether
he had been exposed to a blood-borne pathogen, but he was
denied an HIV/AIDS test. He allegedly suffered stomach pains
and diarrhea after eating the meal. For relief, he seeks
compensatory and punitive damages. He also seeks an
injunction requiring that employees of Trinity Food Service,
rather than custody officers, deliver his food trays to his
Failure to state a claim
complaint may be dismissed for failure to state a claim if it
fails “‘to give the defendant fair notice of what
the . . . claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). While a complaint need not contain
detailed factual allegations, a plaintiff's allegations
must include more than labels and conclusions. Id.
at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”). The court must determine whether the
complaint contains “enough facts to state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 679. Although the plausibility
standard is not equivalent to a “‘probability
requirement, ' . . . it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Id. at 678 (quoting Twombly, 550 U.S. at
556). “[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged - but it has not
‘show[n]' - that the pleader is entitled to
relief.” Id. at 679 (quoting Fed.R.Civ.P.
8(a)(2)); see also Hill v. Lappin, 630 F.3d 468,
470-71 (6th Cir. 2010) (holding that the
Twombly/Iqbal plausibility standard applies to
dismissals of prisoner cases on initial review under 28
U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege the violation of a right secured by the federal
Constitution or laws and must show that the deprivation was
committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988);
Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549
(6th Cir. 2009). Because § 1983 is a method for
vindicating federal rights, not a source of substantive
rights itself, the first step in an action under § 1983
is to identify the specific constitutional right allegedly
infringed. Albright v. Oliver, 510 U.S. 266, 271
fails to make specific factual allegations against Defendant
Shouse, other than his claim that Shouse failed to properly
supervise his employees or manage the cleaning and
preparation of food trays. Government officials may not be
held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior or
vicarious liability. Iqbal, 556 U.S. at 676;
Monell v. New York City Dep't of Soc. Servs.,
436 U.S. 658, 691(1978); Everson v. Leis, 556 F.3d
484, 495 (6th Cir. 2009). A claimed constitutional violation
must be based upon active unconstitutional behavior.
Grinter v. Knight, 532 F.3d 567, 575-76 (6th Cir.
2008); Greene v. Barber, 310 F.3d 889, 899 (6th Cir.
2002). The acts of one's subordinates are not enough, nor
can supervisory liability be based upon the mere failure to
act. Grinter, 532 F.3d at 576; Greene, 310
F.3d at 899; Summers v. Leis, 368 F.3d 881, 888 (6th
Cir. 2004). Moreover, § 1983 liability may not be
imposed simply because a supervisor denied an administrative
grievance or failed to act based upon information contained
in a grievance. See Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999). “[A] plaintiff must plead
that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.” Iqbal, 556 U.S. at 676.
Plaintiff has failed to allege that Defendant Shouse engaged
in any active unconstitutional behavior. Accordingly, he
fails to state a claim against him.
even if Plaintiff had alleged active conduct by Shouse, his
complaint would fail to state a claim. The Eighth Amendment
imposes a constitutional limitation on the power of the
states to punish those convicted of crimes. Punishment may
not be “barbarous” nor may it contravene
society's “evolving standards of decency.”
Rhodes v. Chapman, 452 U.S. 337, 345-46 (1981). The
Amendment, therefore, prohibits conduct by prison officials
that involves the “unnecessary and wanton infliction of
pain.” Ivey v. Wilson, 832 F.2d 950, 954 (6th
Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at
346). The deprivation alleged must result in the denial of
the “minimal civilized measure of life's
necessities.” Rhodes, 452 U.S. at 347; see
also Wilson v. Yaklich, 148 F.3d 596, 600-01 (6th Cir.
order for a prisoner to prevail on an Eighth Amendment claim,
he must show that he faced an objectively serious risk to his
health or safety and that the defendant-official subjectively
understood that risk and acted with “‘deliberate
indifference' to [his] health or safety.”
Mingus v. Butler, 591 F.3d 474, 479-80 (6th Cir.
2010) (citing Farmer v. Brennan, 511 U.S. 825, 834
(1994) (applying deliberate indifference standard to medical
claims)); see also Helling v. McKinney, 509 U.S. 25,
35 (1993) (applying deliberate indifference standard to
conditions of confinement claims)). “Not every
unpleasant experience a prisoner might endure while
incarcerated constitutes cruel and unusual punishment within
the meaning of the Eighth Amendment.” Ivey v.
Wilson, 832 F.2d 960, 954 (6th Cir. 1987).
variety of courts have held that the occasional delivery of
food on dirty food trays does not meet the objective
component of an Eighth Amendment claim. See, e.g.,
Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir.1992)
(inmates routinely being served cold food contaminated with
foreign objects does not amount to an Eighth Amendment
violation); Myers v. Aramark Food Servs., No.
15-1824-JDT-tmp, 2016 WL 4292639, at *4 (W.D. Tenn. Aug. 15,
2016) (holding that allegations that three instances of being
served food on a dirty tray was insufficient to state an
Eighth Amendment claim); Lewis v. Jasso, No.
1:11-cv-00369, 2011 WL 3667278, at *2 (E.D. Cal. Aug. 22,
2011) (citing Lemaire v. Maass, 12 F.3d 1444, 1456
(9th Cir. 1993) (isolated incidents of unsanitary food
service are insufficient to state an Eighth Amendment claim))
(occasional use of “contaminated” food trays
fails to state a claim). Liles v. Camden Cty. Dep't
of Corr., 225 F.Supp.2d 450, 459 (D.N.J. 2002) (holding
that the serving of spoiled food on a single occasion and
regular service on smelly trays was insufficient to support
and Eighth Amendment claim); Miles v. Konvalenka,
791 F.Supp. 212, 213 (N.D. Ill. 1992) (concluding that
discovery of a dead mouse on one prisoner's food tray
does not state an Eighth Amendment claim); Islam v.
Jackson, 782 F.Supp. 1111, 1114-15 (E.D. Va. 1992)
(serving one meal contaminated with maggots and serving meals
under unsanitary conditions for thirteen days was not cruel
and unusual punishment, even though inmate suffered symptoms
of food poisoning on one occasion. But see Billioups v.
Metro. Gov't ...