Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Avery v. Helder

United States District Court, W.D. Arkansas, Fayetteville Division

February 28, 2017

ROBERT W. AVERY PLAINTIFF
v.
SHERIFF HELDER, Washington County, Arkansas; MAJOR RANDALL DENZER; SERGEANT FULLER; SERGEANT MORSE; SERGEANT ARNOLD; LANDON first name & position unknown; EAST first name & position unknown; ARAMARK CORRECTIONAL SERVICES, LLC; JOHN DOE AND JANE DOE, Employees of ARAMARK; CHIEF MIKE PETERS, Springdale Police Department; PATROLMAN MOTSINGER; TWO JOHN DOE TRANSPORTATION OFFICERS; and CORPORAL MULVANEY DEFENDANTS

          OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE

         This is a civil rights suit filed by the Plaintiff, Robert Avery, pursuant to the provisions of 42 U.S.C. § 1983. Plaintiff proceeds pro se and in forma pauperis.

         Plaintiff is presently incarcerated in the Delta Regional Unit of the Arkansas Department of Correction. However, he was incarcerated in the Washington County Detention Center ("WCDC") at all times relevant to this complaint.

         Currently pending before the Court is a Motion to Dismiss (Doc. 32) filed by Aramark Correctional Services, LLC. Plaintiff did not respond to the Motion, but it is now ripe for decision.

         I. BACKGROUND

         Plaintiff alleges that Aramark has failed to provide him with a diet with sufficient nutrition and calories to maintain his health. He alleges the food is substandard, the menu protein deficient, and the portion sizes are inadequate. As a result, he states he is hungry, has been losing weight and muscle mass, and has been suffering mental anguish.

         On days that commissary is ordered, he alleges the portions are even smaller. He asserts the reason for this is that Aramark profits from commissary sales. Further, he alleges the prices charged for commissary items are exorbitant.

         When he was booked in, Plaintiff alleges he notified WCDC personnel that he was vegetarian. Despite this, he alleges Aramark has denied him a vegetarian diet.

         Finally, Plaintiff alleges the food handling and service does not comply with safe food handling procedures. He notes that the food trays are placed on a flat cart and not in a hot box. He indicates the food sits before serving and is not maintained at an adequate temperature.

         II. LEGAL STANDARD

         Rule 8(a) contains the general pleading rules and requires a complaint to present "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "In order to meet this standard, and survive a motion to dismiss under Rule 12(b)(6), 'a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.'" Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         "The plausibility standard requires a plaintiff to show at the pleading stage that success on the merits is more than a 'sheer possibility.'" Braden, 588 F.3d at 594 (quoting Iqbal, 129 S.Ct. at 1949). The standard does "not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation, " or reasonable inference, that the "defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678; see also Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (while pro se complaints are liberally construed, they must allege sufficient facts to support the claims.).

         III. DISCUSSION

         Aramark maintains the complaint as against it should be dismissed for the following reasons: (1) the lack of physical injury bars the case; (2) the complaint fails to allege facts showing that Plaintiff is entitled to relief; (3) Plaintiff failed to show that he exhausted his administrative remedies; and (4) Plaintiff has failed to allege that Aramark acted under ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.