United States District Court, W.D. Kentucky, Louisville Division
YALE L. BALCAR et al. PLAINTIFFS
ARAMARK et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge
Yale L. Balcar and Carl J. Perry, Jr., filed the instant
pro se civil-rights action pursuant to 42 U.S.C.
§ 1983. By Order entered February 28, 2018, the Court
dismissed Plaintiff Balcar from this action pursuant to
Federal Rule of Civil Procedure 41(b) for failure to comply
with an order of the Court and for failure to prosecute (DN
13). Plaintiff Balcar having been dismissed, this matter is
before the Court on initial review of only Plaintiff
Perry's claims in the complaint pursuant to 28 U.S.C.
§ 1915A. For the reasons that follow, the Court will
allow some claims to proceed and dismiss the others.
Perry is a convicted prisoner incarcerated in the Kentucky
State Reformatory (KSR). As Defendants, he names Aramark, the
food service provider at KSR, and Mr. Jerge, Aramark
Supervisor at KSR, who is sued in both his individual and
complaint alleges that there is “No sanitation in
kitchen, no proper trash procedures, there is roach or rat
infestations around the cook arear and storage rooms and very
little Hair net”; that food servers “play in food
while serving the food” and “Guard reach in and
grab food out of the food container”; that “Air
Quality and Temperature in dinning Hall posed a serious
danger to Plaintiffs health”; that there is
overcrowding in the dining hall; that “Food handlers .
. . [are not] certified by State Health Department”;
and that there are “Other Conditions in Dinning Hall,
fire safety. . . . unsafe work requirements, as well as other
inadequate or inhumane conditions” (citations omitted).
In addition, according to the complaint, “Aramark food
is not nutritionally adequate. No well-balanced meals, no
nutritional value to preserve health”; there “is
health hazards in the food because it said for animal Food
Only”; there “is serious Food-borne
illness”; “Foods in the cooler and freezer are
out date yet they feed it to all prisoner”; and there
“is maggot in our food daily and this is a serious
borne illness and a health hazard to Plaintiffs.”
complaint further alleges that Plaintiff Perry “is a
diabetic and is order for medical diet for a diabetic and
Aramark is refusing to do a diabetic Diet for all the
diabetic prisoners.” “Aramark is simply ignore
Perry, Jr, dietary diabetes diet. Perry Jr. is prescribed
insulin and need to eat quickly and is being put on hold for
30 min or more by Aramark.”
the complaint alleges that Plaintiff Perry is in a wheelchair
with a disability and that there is “no accommodation
for the physical disabilites in the Dinning Hall. No Handicap
table, No Restroom at all, and no Handicap Serving
relief, Plaintiff Perry seeks compensatory and punitive
damages and declaratory and injunctive relief. As injunctive
relief, Plaintiff Perry seeks an order directing Aramark to
provide him with a medical diet for his diabetes and
“to cease their Retaliation and their threats toward
Plaintiff Perry is a prisoner seeking relief against
governmental entities, officers, and/or employees, this Court
must review the instant action under 28 U.S.C. § 1915A.
Under § 1915A, the trial court must review the complaint
and dismiss the complaint, or any portion of the complaint,
if the court determines that it is frivolous or malicious,
fails to state a claim upon which relief may be granted, or
seeks monetary relief from a defendant who is immune from
such relief. See § 1915A(b)(1), (2); McGore
v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549
U.S. 199 (2007).
is legally frivolous when it lacks an arguable basis either
in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). The trial court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Id. at 327.
order to survive dismissal for failure to state a claim,
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Twombly, 550
U.S. at 556). “[A] district court must (1) view the
complaint in the light most favorable to the plaintiff and
(2) take all well-pleaded factual allegations as true.”
Tackett v. M & G Polymers, USA, LLC, 561 F.3d
478, 488 (6th Cir. 2009) (citing Gunasekera v.
Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations
omitted)). “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does a
complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555, 557).
Claims Regarding Food Service/Quality and Denial of Diabetic
complaint alleges unsanitary conditions of the food service
area, the serving of expired foods to prisoners,
nutritionally inadequate food, maggots in food on a daily
basis, and denial of a diabetic diet. Upon consideration, the
Court will allow these Eighth Amendment ...