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March v. Aramark Corp.

United States District Court, E.D. Tennessee, Knoxville

March 28, 2018

PERRY AVRAM MARCH, Plaintiff,
v.
ARAMARK CORPORATION, ARAMARK CORRECTION SERVICES, LLC, TENNESSEE DEPARTMENT OF CORRECTION, JASON WOODALL, JANE AMONETT, TONY BELL, JEFFREY PEMPEIT, ERIC FLOSS, MARK ADAMS, LAWRENCE BABBIO, JR., TODD ABRECHT, SANJEEV MEHRA, DANIEL HEINREICH, LEONARD COLEMAN, JR., STEPHEN SADOVE, IRENE ESTEVES, PIERRE-OLIVIER BECKERS-VIAJANT, LISA BISACCIA, JOHN QUELCH, RICHARD DREILING, CHS INC., and UNNAMED PERSONS, Defendants.

          MEMORANDUM & ORDER

          RONNIE GREER UNITED STATES DISTRICT JUDGE

         This is a pro se prisoner's complaint under 42 U.S.C. § 1983 that the United States District Court for the Middle District of Tennessee transferred to this Court after assessing Plaintiff with the filing fee [Doc. 13].

         Now before the Court are Plaintiff's complaint and amended complaint [Docs. 1 and 18], Plaintiff's motion to unseal qui tam action, permit Plaintiff to proceed as qui tam Plaintiff, and to serve complaint [Doc. 12], Plaintiff's motion for status of transferred case [Doc. 17], and Plaintiff's motion for appointment of counsel [Doc. 19].

         The Court will address each of these filings based on the substance thereof.

         I. QUI TAM

         In both of his complaints [Docs. 1 and 18] and in his motion to, inter alia, unseal qui tam action [Doc. 12], Plaintiff states his intention to proceed qui tam in this action. Plaintiff also sets forth various claims on behalf of both the federal and state governments in his complaints. Specifically, Plaintiff asserts in his amended complaint that, as the Tennessee Department of Correction receives funds from the United States government, the Aramark Defendants are liable to the United States Government for violations of the False Claims Act under 31 U.S.C. § 3729 [Doc. 18 at 43-46]. Plaintiff also alleges that he brings this action on behalf of the Tennessee Department of Correction (“TDOC”) for false claims brought by the Aramark Defendants [Id. at 54-61]. Accordingly, it appears that Plaintiff intended to bring this action against the Aramark Defendants on behalf of the United States and/or TDOC as a qui tam Plaintiff, also known as a relator. As Plaintiff did not comply with the applicable regulations for bringing such claims on behalf of either governmental entity, however, his qui tam claims will not proceed.

         In qui tam actions, private citizens pursue fraud claims on behalf of the government. Knox County ex rel Envtl. Termite & Pest Control, Inc. v. Arrow Exterminators, Inc., 350 S.W.3d 511, 519 (Tenn. 2011); United States ex rel. Bledsoe v. Cmty. Health Sys., 342 F.3d 634, 640 (6th Cir. 2003). Both the United States and the State of Tennessee allow private citizens to bring certain claims under their False Claims Acts on their behalf as a qui tam plaintiff under certain circumstances. See 31 U.S.C. § 3729 et seq. and Tenn. Code Ann. § 4-18-101 et seq. Specifically, to bring a qui tam action on behalf of the United States, the qui tam plaintiff must, among other things, bring the action in the name of the United States Government and serve a copy of the complaint and all material evidence and information on the government. 31 U.S.C. § 3730(b)(1)(2). Also, to bring a qui tam action under the laws of the State of Tennessee, the qui tam plaintiff must, among other things, bring the action in the name of both the individual and the state or the relevant political subdivision of the state and serve a copy of the complaint and all material evidence and information on both the Attorney General and Reporter. Tenn. Code Ann. § 4-18-104(c)(1)(3).

         Plaintiff did not bring either of his complaints [Docs. 1 and 18] in the name of the United States or TDOC. Moreover, Plaintiff bases his fraud and/or False Claims Act claims on the allegation that the Aramark defendants fraudulently bid and secured a contract under the pretense that kosher meals cost more [Doc. 18 at 24]. The Sixth Circuit, however, has specifically held that contracts do not constitute a “claim” for which a qui tam plaintiff can pursue an action under the federal False Claims Act. United States ex rel. Snapp, Inc. v. Ford Motor Co., 618 F.3d 505, 513 (6th Cir. 2010). Further, the record does not support finding that Plaintiff served copy of the complaint on any of the appropriate governmental entities.[1]

         Accordingly, Plaintiff's motion to unseal qui tam action, to permit Plaintiff to proceed as qui tam Plaintiff, and to serve complaint [Doc. 12] will be DENIED to the extent that Plaintiff will not proceed qui tam herein. Further, the claims that Plaintiff has sought to bring qui tam will be DISMISSED.

         II. SCREENING THE AMENDED COMPLAINT

         A. Screening Standard

         Under the Prison Litigation Reform Act (“PLRA”), district courts must screen prisoner complaints and shall, at any time, sua sponte dismiss any claims that are frivolous or malicious, fail to state a claim for relief, or are against a defendant who is immune. See, e.g., 28 U.S.C. §§ 1915(e)(2)(B) and 1915(A); Benson v. O'Brian, 179 F.3d 1014 (6th Cir. 1999). The dismissal standard articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) “governs dismissals for failure state a claim under [28 U.S.C. §§ 1915(e)(2)(B) and 1915A] because the relevant statutory language tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). Thus, to survive an initial review under the PLRA, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Courts liberally construe pro se pleadings filed in civil rights cases and hold them to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).

         In order to state a claim under 42 U.S.C. § 1983, a plaintiff must establish that he was deprived of a federal right by a person acting under color of state law. Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir. 1990) (stating that “Section 1983 does not itself create any constitutional rights; it creates a right of action for the vindication of constitutional guarantees found elsewhere”).

         B. Allegations of the Complaint[2]

         Plaintiff is an orthodox, observant Jew who follows kosher dietary laws, and the TDOC is aware of this fact [Doc. 18 at 8]. In 2016, Defendants Aramark and Aramark Correctional Services (“the Aramark Defendants”) entered into a contract for food service with TDOC (“the Aramark contract”) [Id. at 10]. The Aramark contract provides that the Aramark Defendants will provide all meals, including religious and special event meals, for TDOC inmates in accordance with TDOC policies [Id. at 10-11], and that Defendant Bell, as management staff, will oversee the contract, including the kosher menu [Id. at 11 fn. 7].

         TDOC policies provide that religious diet meals will “conform as closely as possible” to the general population menu and that inmates will receive two hot meals each day of the week, including weekends [Id. at 12]. TDOC policies also provide guidelines for the preparation and service of kosher foods and state that kosher meals will be boxed and prepackaged [Id. at 12]. Further, Defendants Woodall and Amonett are responsible for approving the menus under the Aramark contract [Id. at 13]. The Aramark contract also requires that Aramark provide a holiday menu for the entire inmate population [Id. at 14].

         The Aramark kosher menu, however, is based upon a five-day cycle, designed around only two foods (specifically peanut butter and “textured vegetable protein” (“TVP”)), and each breakfast is essentially the same meal with “three minor variations of an accompanying cereal side dish” [Id. at 15-16]. When Plaintiff asked Defendant Pempeit why he could not have hard-boiled eggs or other breakfast entrees, Defendant Pempeit told Plaintiff to get out of his face and stated “[y]ou are a Jew, you chose this food we are giving you for yourself, so choke on it if you don't like peanut butter. Get your Jesus on and you can eat like a Christian” [Id. at 16]. Plaintiff complained about this incident to Defendant Bell, who asked Plaintiff not to file paperwork about it and stated that he would take care of it [Id.].

         Every kosher lunch and dinner meal is built around a TVP product named Ultra-Soy, a product of Defendant CHS, that “is intentionally masked and passed[]off as something more, with only a slight change of flavoring and color” [Id. at 17]. Also, there are only five kosher lunch meals and six kosher dinner meals, all served over a seven day cycle, while the general population menu includes twenty-five different meal combinations over a twenty-eight day cycle [Id.]. Most of the meals served to the general population, however, are kosher quality and would be considered kosher if prepared in the kosher kitchen in accordance with Kashrut laws [Id. at 17, 23].

         Further, Ultra-Soy is a modified and chemically treated soybean product that is processed with dangerous chemicals, including hexane, that have damaging effects when served in high volume over a long period of time [Id. at 18-19]. Defendant CHS markets Ultra-Soy as a meat extender that should be used as a food modifier, additive, and enhancer, and is aware that the Aramark Defendants are using it in an unintended manner to replace all other food products and that the use of Ultra-Soy in high doses can cause health dangers, but Defendant CHS has withheld warnings or knowingly conspired not to correct this harm [Id. at 18, 22].

         Accordingly, the kosher menu requires Plaintiff to ingest unhealthy quantities of hexane and soy [Id. at 19-20]. As a result, Plaintiff has suffered digestive problems, all of which he has reported to MCCX medical staff and all of which are documented in his prison records [Id. at 20]. Medical staff at MCCX have told Plaintiff that an easy and effective way to solve his digestive issues is to consume the general inmate population menu, rather than the kosher diet [Id. at 21]. Plaintiff has also experienced emotional health issues that he attributes to the kosher diet [Id. at 21-22]. TDOC has been deliberately indifferent to Plaintiff's medical condition due to his overly-high soy consumption and he is not being treated appropriately [Id. at 22].

         Despite TDOC policy providing for two hot meals a day for all inmates, the kosher menu meals served on Saturday and Sunday are designed to be and are served cold, although the general population receives two hot meals on Saturday [Id. at 22-23]. Plaintiff alleges that this is intentionally discriminatory because Saturday is the Jewish Sabbath, which is designated as a day of joy [Id. at 23]. Most of the foods served to the general population contain little to no soy and therefore would not trigger Plaintiff's soy intolerance [Id.].

         Also, Defendant Bell has refused to allow Plaintiff to inspect the MCCX kitchen that is alleged to be kosher and Plaintiff asserts that the MCCX kitchen is not kosher [Id. fn. 13]. As such, the food that comes therefrom does not satisfy the requirements of Jewish law [Id. fn. 13].

         Cost is not an issue that would prohibit the Aramark Defendants from making the kosher menu conform to the general menu more closely, as the higher cost of special menus, including kosher meals, is “blended” into the contract in a manner that accounted for those higher costs [Id. at 24]. By using Ultra-Soy, the Aramark Defendants have made the kosher meals less expensive than the general population meals, and thus the Aramark defendants fraudulently bid and secured the contract under the pretense that kosher meals would have higher costs [Id. at 24]. As such, serving non-prepackaged kosher meals is fraud that causes Plaintiff health damage and infringes on Plaintiff's right to free exercise of his religion and equal protection [Id. at 24-25].

         Defendant Bell has deliberately harmed Plaintiff by “denying him the full nutritional value and servings of the contracted for [k]osher meals” and serving him non-kosher foods [Id. at 25]. When Plaintiff informed Defendant Bell that some of his food was not kosher, Defendant Bell told Plaintiff he would bless it and make it kosher because he was now Plaintiff's rabbi [Id. at 25-26].

         Defendants Bell and Amonett knowingly denied Plaintiff's request to have a holiday meal because he is an orthodox Jew [Id. at 26]. On Thanksgiving, after Plaintiff asked for his Thanksgiving meal, Defendant Pempeit brought Plaintiff his normal Ultra-Soy meal, made the sign of the cross over it, and stated “that is special enough. Get lost” when he gave it to Plaintiff [Id.]. Also, when Plaintiff went to pick up his Christmas meal, a fellow inmate told Plaintiff that Defendant Pempeit had told the inmate to tell Plaintiff that it was the day to celebrate the birth of Jesus, there would be nothing special for Plaintiff, and for Plaintiff to get lost [Id.].

         The kosher meals Plaintiff receives have various deficiencies, some of which render them non-kosher, and Defendants do not maintain a kosher kitchen [Id. at 27-29].

         Also, the Aramark Defendants have breached the Aramark contract in ...


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