Pfeifer v. Armark Food Corp

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

BRUCE DEMAR PFEIFER, JR.,

Plaintiff,

v. CAUSE NO. 3:23-CV-536-JD-SJF

ARMARK FOOD CORP, et al.,

Defendants.

OPINION AND ORDER

Bruce Demar Pfeifer, Jr., a prisoner without a lawyer, filed an amended

complaint against fifteen separate defendants for allegedly failing to provide him with a

kosher diet while he was incarcerated at the St. Joseph County Jail. ECF 13. “A

document filed pro se is to be liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and

citations omitted). Nevertheless, under 28 U.S.C. § 1915A, the court must review the

merits of a prisoner complaint and dismiss it if the action is frivolous or malicious, fails

to state a claim upon which relief may be granted, or seeks monetary relief against a

defendant who is immune from such relief.

Pfeifer alleges that, when he was booked into the St. Joseph County Jail on

February 11, 2023, he notified booking staff that he is a Hebrew Israelite and eats a

kosher diet. Someone in the booking department gave him a form and told him to send

his request for a kosher diet to Warden Russ Olmstead and Sheriff W. Redman. He

followed those instructions, but he did not receive a response. On February 28, 2023, he

made another request for a kosher diet. This request was directed to inmate services. An

officer responded on March 1, 2023, indicating that his request was approved, and

Pfeifer began receiving kosher meals on February 28, 2023.

Pfeifer, however, was not satisfied that the diet he was receiving was in fact

kosher. On March 4, 2023, he submitted a request to Aramark Supervisor Michael

Shapiro. In this request, Pfeifer complained that the meals were being served against

religious procedure because they were received on the county jail’s hard trays and with

reusable utensils. Pfeifer wanted Styrofoam trays and disposable utensils. Shapiro

approved his request to have his food served on Styrofoam trays, but he did not

address Pfeifer’s request for disposable utensils. Pfeifer filed a grievance against

Armark, but he did not receive a response.

On March 22, 2023, Pfeifer complained that Shapiro allowed deputies and inmate

trustees to deliver meals instead of approved kosher handlers (certified by a rabbi or

someone of the same faith). Pfeifer asserts that, without an approved kosher handler,

the meals are no longer kosher. He received no response.

On April 22, 2023, Clp. Baker and Deputy Wilson allegedly denied Pfeifer a

kosher meal. Pfeifer filed another complaint against Russ Olmstead and Rebecca

Zawistowski regarding how his meals were prepared and served. He received no

response.

On May 3, 2023, Pfeifer’s meal was served on a reusable tray. Deputy Benson

said Pfeifer must either accept the meal or get nothing for lunch. Another deputy

contacted Warden Olmstead with Pfeifer’s request that meals be served on disposable

trays, and Warden Olmstead denied Pfeifer’s request. That evening, Pfeifer again

refused a meal because it was on a reusable tray. Deputy Valez1 contacted Aramark

employee Sandy, who indicated that they stopped using Styrofoam trays at the

direction of Rebecca Zawistowski. Pfeifer filed a grievance directed to Zawistowski and

Shapiro, but neither responded.

On July 7, 2023, Deputy Worth refused to replace a contaminated meal tray.

Pfeifer further alleges that, on July 8, 2023, Deputy Grahl, Deputy Sharp, Sgt. Garcia,

and Lt. Brothers attempted to serve him contaminated food and refused to replace that

food. On July 29, 2023, Deputy Grahl used his boot to sweep up a reusable spoon like

those provided with Pfeifer’s kosher meals.

In short, Pfeifer alleges that the allegedly kosher meals he received at the jail

were not in fact kosher because they were delivered on reusable trays, utilized reusable

utensils, and were delivered by individuals who lacked the training necessary to ensure

the meal remained kosher. This caused him to either violate his sincerely held religious

beliefs or go without adequate nutrition.2

1 Deputy Valez is not listed as a defendant in the amended complaint.

2 Pfeifer also references an occasion when he received spoiled milk, resulting in diarrhea and inadequate

calories for that meal. Exhibits submitted with the amended complaint indicate that the issue was

addressed with the vendor that provided the milk. ECF 13-1 at 14. Being deprived of milk at a single meal

does not implicate constitutional concerns. “Not every wrong committed under color of law, however, is

offered redress by the Constitution[.]” Leslie v. Doyle, 125 F.3d 1132, 1138 (7th Cir. 1998). “There is, of

course a de minimis level of imposition with which the Constitution is not concerned.” Ingraham v.

Wright, 430 U.S. 651, 674 (1977).

Prisoners have a right to exercise their religion under the Free Exercise Clause of

the First Amendment. Vinning-El v. Evans, 657 F.3d 591, 592-93 (7th Cir. 2011).

Nevertheless, correctional officials may restrict the exercise of religion if the restrictions

are reasonably related to legitimate penological objectives, which include safety,

security, and economic concerns. Turner v. Safley, 482 U.S. 78, 89-91 (1987). Moreover,

the Supreme Court of the United States has long established “the general proposition

that a law that is neutral and of general applicability need not be justified by a

compelling governmental interest even if the law has the incidental effect of burdening

a particular religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520, 531 (1993).

The Religious Land Use and Institutionalized Persons Act (RLUIPA) affords even

broader protections than the First Amendment. This act prohibits governmental entities

from imposing “a substantial burden on the religious exercise of a person residing in or

confined to an institution . . . unless the government demonstrates that imposition of the

burden on that person—(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.” 42

U.S.C. § 2000cc-1(a); see generally Holt v. Hobbs, 574 U.S. 352 (2015). RLUIPA does not

permit a suit against an individual for money damages. See Nelson v. Miller, 570 F.3d

868, 886-87 (7th Cir. 2009), abrogated on other grounds by Jones v. Carter, 915 F.3d 1147,

1149-50 (7th Cir. 2019). However, it is an open question whether monetary damages are

available under RLUIPA against counties or county officers acting in their official

capacity. See Williams v. Redman, No. 3:20-CV-196-JD-MGG, 2021 WL 1907224, at *3

(N.D. Ind. May 12, 2021) (citing Tanzin v. Tanvir, 141 S. Ct. 486, 492 (2020), and allowing

a RLUIPA damages claim to proceed at screening against county sheriff).

Here, Pfeifer has pled facts from which it can be plausibly inferred that the

manner in which his food was prepared and delivered rendered it not kosher and

violated his rights under both the First Amendment and RLUIPA.3 He may proceed

against Michael Shapiro, Russ Olmstead, and Rebecca Zawistowski in their individual

capacities for monetary damages under the First Amendment because he has alleged

that they were each personally involved in making decisions regarding how his meals

would be prepared and served. Additionally, he may proceed against Warden Russ

Olmstead4 in his official capacity under both the First Amendment and RLUIPA.5

However, Pfeifer may not proceed against Armark Employee Sandy, as he

alleged only that she explained that they were no longer using Styrofoam at the

3 Pfeifer has not clearly annunciated the nature of the problem with reusable trays and utensils in his

amended complaint. However, his objection to the use of the same trays and utensils used by other

inmates is consistent with kosher laws. “Unless one is a vegetarian and totally excludes meat from their

kitchen, a kosher kitchen must have two different sets of utensils, one for meat and poultry and the other

for dairy foods. There must be separate, distinct sets of pots, pans, plates and silverware.”

https://www.kosher.com/jewish-learning/keeping-a-kosher-kitchen/ (last visited Feb. 18, 2024).

4 It is unnecessary to allow claims to proceed against both Warden Olmstead and Rebecca Zawistowski in

their official capacity, as a suit against either of them in their official capacity is the same as a suit against

St. Joseph County itself. See Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1071 (7th Cir. 2012).

5 Pfeifer’s potential damages under both the First Amendment and RLUIPA are limited by the Prison

Litigation Reform Act of 1996 (“PLRA”). The PLRA states that “no Federal civil action may be brought by

a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered

while in custody without a prior showing of physical injury or the commission of a sexual act.” 42 U.S.C.

§ 1997e(e). Pfeifer does not allege any physical or other concrete injury as a result of the alleged

infringement of his religious practices, so his recovery may be limited to nominal and punitive damages

(if he can make the required showing) against the defendants on his individual capacity claims, and

nominal damages on his official capacity claim. See Bryan, 523 F.3d at 804 (noting that PLRA provision

limiting damages applies to RLUIPA claims); Pearson v. Welborn, 471 F.3d 732, 744-45 (7th Cir. 2006)

(allowing only nominal damages award to inmate who prevailed at trial on a First Amendment

retaliation claim because he did not suffer physical or other injury as required by the PLRA for

compensatory damages).

direction of Zawistowski and Olmstead. She is not the cause of Pfeifer’s injury.

Likewise, Pfeifer may not proceed against Deputy Benson because he did not decide

that meals would be served on reusable trays; he merely carried out the directives of his

supervisors.

Pfeifer may not proceed against Deputy Wilson, Clp. Baker, Deputy Grahl,

Deputy Sharp, Sgt. Garcia, or Lt. Brothers regarding the incidents on April 22, 2023, July

7, 2023, or July 8, 2023, because the allegations in the amended complaint are too vague

to state claims. Furthermore, it appears that they also were merely carrying out the

directives of their supervisors.

Pfeifer also names Deputy EB as a defendant, but he does not mention Deputy

EB in the body of his amended complaint. Similarly, Sheriff Redman’s only involvement

was as a recipient of Pfeifer’s first request for kosher meals. “[P]ublic employees are

responsible for their own misdeeds but not for anyone else’s.” Burks v. Raemisch, 555

F.3d 592, 596 (7th Cir. 2009). “Only persons who cause or participate in the violations

are responsible.” George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). Because he has not

alleged any misdeeds on the part of Deputy EB or Sheriff Redman, he may not proceed

against them.

Additionally, Pfeifer named Armark Food Service, the private company that

provides meals at the jail, as a defendant. A private company performing a public

function can be held liable if its own policies caused the alleged constitutional

violation. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978); Rice v.

Correctional Medical Svcs., 675 F.3d 650, 675 (7th Cir. 2012). The purpose of the official

policy requirement is to “distinguish between the isolated wrongdoing of one or a few

rogue employees and other, more widespread practices.” Howell v. Wexford Health

Sources, Inc., 987 F.3d 647, 654 (7th Cir. 2021). Here, the amended complaint plausibly

alleges that Armark had policies related to how they prepared and served kosher food

that resulted in violations of Pfeifer’s rights under the First Amendment and RLUIPA.

Therefore, he may proceed against Armark Food Corp.

For these reasons, the court:

(1) GRANTS Bruce Demar Pfeifer, Jr., leave to proceed against Michael Shapiro,

Russ Olmstead, and Rebecca Zawistowski in their individual capacities for monetary

damages for depriving him of a diet consistent with his religious believes, in violation

of the First Amendment;

(2) GRANTS Bruce Demar Pfeifer, Jr., leave to proceed against Russ Olmstead in

his official capacity for monetary damages for depriving him of a diet consistent with

his religious believes, in violation of the First Amendment and RLUIPA;

(3) GRANTS Bruce Demar Pfeifer, Jr., leave to proceed against Aramark Food

Corp. for monetary damages for depriving him of a diet consistent with his religious

believes, in violation of the First Amendment and RLUIPA;

(4) DISMISSES all other claims;

(5) DISMISSES Armark Employee Sandy, Deputy Benson, Sheriff W. Redman,

Deputy Wilson, Clp. Baker, Sgt. Garcia, Deputy Beth Sharp, Lt. Brothers, Deputy EB,

Deputy Grahl, and Deputy Worth;

(6) DIRECTS the clerk, under 28 U.S.C. § 1915(d), to request Waiver of Service

from (and if necessary, the United States Marshals Service to use any lawful means to

locate and serve process on) Michael Shapiro and Aramark Food Corp. at Aramark,

with a copy of this order and the complaint (ECF 13);

(7) DIRECTS the clerk, under 28 U.S.C. § 1915(d), to request Waiver of Service

from (and if necessary, the United States Marshals Service to use any lawful means to

locate and serve process on) Russ Olmstead and Rebecca Zawistowski at St. Joseph

County Sheriff’s Department, with a copy of this order and the complaint (ECF 13);

(8) ORDERS Aramark and St. Joseph County Sheriff to provide the full name,

date of birth, and last known home address of any defendant who does not waive

service if it has such information; and

(9) ORDERS, under 42 U.S.C. § 1997e(g)(2), Michael Shapiro, Warden Russ

Olmstead, Rebecca Zawistowski, and Aramark Food Corp. to respond, as provided for

in the Federal Rules of Civil Procedure and N.D. Ind. L.R. 10-1(b), only to the claims for

which the plaintiff has been granted leave to proceed in this screening order.

SO ORDERED on February 18, 2025

/s/JON E. DEGUILIO

JUDGE

UNITED STATES DISTRICT COURT