United States District Court, W.D. Arkansas, Fayetteville Division
ROBERT W. AVERY PLAINTIFF
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
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
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.
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.
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.
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.
was booked in, Plaintiff alleges he notified WCDC personnel
that he was vegetarian. Despite this, he alleges Aramark has
denied him a vegetarian diet.
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.
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)).
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.).
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 ...