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Francis v. Zavadill

October 30, 2006


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.


Victor Francis, proceeding pro se, brings suit under 42 U.S.C. § 1983 ("section 1983") against defendants State of New York Department of Correctional Services ("DOCS") Green Haven Correctional Facility Cook Erik Zavadil, Food Administrator II Sidney Johnston, and Food Services Administrator John Rapp.*fn1 Francis alleges that food served to inmates at the Green Haven Correctional Facility ("Green Haven"), such as mashed potatoes, was contaminated with aluminum fibers and metal splinters from a faulty can opener.*fn2

Although plaintiff states that he has "[n]o visible injuries as yet,"*fn3 he seeks $100,000,000 in compensation and punitive damages, as well as injunctive relief requiring Johnston to buy a new and different can opener.*fn4 Defendants have moved to dismiss, inter alia, for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Plaintiff opposes this motion.*fn5 For the following reasons, defendants' motion is granted and this case is dismissed.


A. The Allegedly Contaminated Food

Plaintiff alleges that on July 25, 2005, while working at Green Haven's mess hall, he served inmates mashed potatoes prepared by Zavadil from a can.*fn6 In the course of recycling empty cans of mashed potatoes, plaintiff noticed aluminum fibers on his hands.*fn7 When he looked inside one of the cans, he saw aluminum fibers mixed with the powdered mashed potatoes.*fn8 Plaintiff called Zavadil to the area where he was working and showed him what he had found.*fn9 Zavadil, who allegedly responded that there was nothing he could do because the cans were already opened, continued to serve the mashed potatoes that he had prepared.*fn10 When asked why he was continuing to serve the contaminated mashed potatoes, Zavadil told plaintiff that he did not have anything to serve in place of the mashed potatoes.*fn11 Zavadil informed plaintiff that the manual can opener he was using would be repaired.*fn12

On September 11, 2005, a new blade was inserted into the can opener, but this did not prevent canned food from being contaminated with aluminum fibers and metal splinters.*fn13 When plaintiff informed Zavadil that the can opener had not been fixed properly, Zavadil responded that the matter had been brought to the attention of Johnston and Rapp.*fn14 According to plaintiff, Zavadil stated that the replacement of the can opener was out of his hands because it was a "money thing."*fn15

While eating lunch at some later date, several mess hall workers discovered metal splinters in their pizza, which had been served to the prison's general population.*fn16 The source of the splinters was the can opener used to open cans of tomato sauce.*fn17 This matter was brought to the attention of another cook, Lorie Badgers, who told Johnston that aluminum fibers and splinters were contaminating the food.*fn18 In October 2005, Johnston replaced the can opener with another manual can opener of the same style.*fn19

The problem continued. On November 14, 2005, plaintiff noticed the presence of aluminum fibers in mashed potatoes that came from a can opened with the new can opener.*fn20 According to plaintiff, the problem could be rectified by replacing the manual can opener with an electric one*fn21 Plaintiff claims he told both Johnston and Zavadil that an electric can opener was needed.*fn22 In response, Johnston and Zavadil allegedly told plaintiff that they did not have the money for an electric can opener and were not going to buy one.*fn23

B. Exhaustion of Administrative Remedies

Plaintiff claims that he filed a grievance regarding the can opener's contamination of food with aluminum fibers and metal splinters.*fn24 However, there is no such grievance on record. Green Haven maintains files of inmate grievances in accordance with DOCS Directive # 4040.*fn25 Directive #4040 requires facilities to record all grievances filed by inmates in grievance files and logs which are maintained for the current year and the previous four calendar years.*fn26 The only grievance on record filed by plaintiff, GH-50273-02, is a grievance concerning dental treatment dated November 20, 2002.*fn27 Furthermore, the Central Office Review Committee ("CORC") also maintains files of appealed grievance decisions in accordance with Directive # 4040.*fn28 A review of the CORC database reveals that the only grievance plaintiff appealed to CORC was the same grievance concerning dental work, which was disposed of by CORC on January 29, 2003.*fn29 Plaintiff did not submit a copy of his alleged grievance as part of his opposition.*fn30

Instead of filing a formal grievance, it appears that plaintiff wrote a letter to DOCS Commissioner Glenn S. Goord on February 15, 2006, complaining of the can openers used at Green Haven.*fn31 This letter was referred to DOCS Director of Nutritional Services, Howard Dean.*fn32 Dean sent plaintiff a letter dated March 24, 2006, informing him that the "Regional Coordinator investigated your concern and found that the can openers are in good repair."*fn33 Plaintiff sent Goord another letter*fn34 to which Dean responded with a letter dated April 24, 2006.*fn35 This letter states that the "Regional Coordinator and Food Service Administrator investigated your concerns while at site visits and found no problems with the can openers."*fn36 Plaintiff sent a third letter, dated May 2, 2006, which Dean responded to on May 30, 2006.*fn37 Dean's letter assured plaintiff that "we do everything possible to protect inmate food by using federally approved commercial can openers."*fn38


A. Motion to Dismiss - In ...

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