Boyd v. Mick

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN A. BOYD, : Case No. 2:22-cv-3492

:

Plaintiff, :

: District Judge Sarah D. Morrison

vs. :

Magistrate Judge Elizabeth P. Deavers

:

KIMBERLY MICK, et al., :

:

:

Defendants. :

REPORT AND RECOMMENDATION

Plaintiff, a prisoner at the London Correctional Institution (LoCI), has filed a pro se civil

rights complaint in this Court against defendants Kimberly Mick and Aramark Corporation. By

separate Order plaintiff has been granted leave to proceed in forma pauperis. This matter is

before the Court for a sua sponte review of the complaint to determine whether the complaint,

or any portion of it, should be dismissed because it is frivolous, malicious, fails to state a claim

upon which relief may be granted or seeks monetary relief from a defendant who is immune

from such relief. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); §

805, 28 U.S.C. § 1915A(b).

For the reasons that follow, the undersigned recommends that the complaint be dismissed

for failure to state a claim upon which relief may be granted, pursuant to 28 U.S.C. § 1915A(b)

and 28 U.S.C. § 1915(e)(2).

Screening of Plaintiff’s Complaint

A. Legal Standard

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to “lower

judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In doing

so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are assumed

by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous,

malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490 U.S. 319, 324

(1989)). To address this concern, Congress included subsection (e)(1) as part of the statute, which

provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that—

* * *

(B) the action or appeal—

(i) is frivolous or malicious;

(ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief.

28 U.S.C. § 1915(e)(2)(B); Denton, 504 U.S. at 31. See also § 1915A(b). Thus, § 1915(e) requires

sua sponte dismissal of an action upon the Court’s determination that the action is frivolous or

malicious, or upon determination that the action fails to state a claim upon which relief may be

granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also Hill

v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

1 Formerly 28 U.S.C. § 1915(d).

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands

on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B., 727 F.3d

502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint

must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”

Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Id. “The plausibility of an inference depends on a host of

considerations, including common sense and the strength of competing explanations for the

defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court holds

pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’” Garrett

v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April 1, 2010)

(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has limits;

“‘courts should not have to guess at the nature of the claim asserted.’” Frengler v. Gen. Motors,

482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir.

1989)).

B. Allegations in the Complaint

Plaintiff brings this complaint in connection with injuries he sustained while working in

institutional food services at LoCI. Although plaintiff does not describe the events giving rise to

his injuries, he claims that on April 26, 2021 he sustained chemical burns, second degree burns,

and severe skin irritation. (Doc. 1-2, Complaint at PageID 18-19). According to plaintiff,

defendant Aramark Food Service Director Kimberly Mick, as well as other non-defendant

Aramark employees and correctional officers, were aware of his injuries, but Mick “applied

improper application to plaintiff’s burn injuries.” (Id. at PageID 18). Plaintiff does not specify

the application applied by Mick. Plaintiff does, however, indicate that he was subsequently taken

to the prison medical department, although he allegedly was not provided with any treatment.2 (Id.

at PageID 22). As a result of the allegedly improper and/or lack of treatment, plaintiff clams he

has permanent loss of feeling in his fingertips due to nerve damage. (Id. at PageID 19).

Based on the above factual allegation, plaintiff claims defendants violated his Eighth

Amendment rights. (Id. at PageID 17).

As relief, plaintiff seeks monetary damages. (Id. at PageID 19.).

C. Analysis

Plaintiff’s complaint is subject to dismissal at the screening stage.

As an initial matter, the complaint includes no factual allegations against Aramark Food

Corporation. Absent any factual allegations against this defendant, Aramark should be dismissed

as a defendant to this action.

To the extent that plaintiff seeks to hold Aramark liable based on the conduct of its

employees, his claim is also subject to dismissal. The theory of respondeat superior does not

2 Plaintiff has not named members of the prison medical staff as defendants to this action.

apply to § 1983 claims and may not serve as a basis for liability. See Iqbal, 556 U.S. at 676;

Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978); Hill v. Marshall, 962 F.2d 1209, 1213 (6th

Cir. 1992). “[Section] 1983 liability of supervisory personnel must be based on more than the

right to control employees.” Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Accordingly,

to the extent that plaintiff seeks to hold Aramark liable for the conduct of its employees, he fails

to state a claim up on which relief may be granted. See, e.g., Kidwell v. Shirmekas, Case No. 20-

3239-SAC, 2021 WL 122848, at *3 (D. Kan. Jan. 13, 2021) (“Under some circumstances,

corporations like Aramark may be considered as persons acting under color of state law for

purposes of § 1983. But, they may not be held liable based upon respondeat superior—that is,

solely because they employ a person who violated the Constitution.”).

Plaintiff has also failed to state an actionable claim against defendant Mick, the Aramark

Food Service Director. As noted above, plaintiff claims that Mick applied improper treatment to

his injuries. However, even if the Court could conclude that Mick had any duty or responsibility

regarding plaintiff’s medical care, his allegation that Mick provided improper treatment is

insufficient to state a claim for relief under the Eighth Amendment.

In order to state a claim for relief under 42 U.S.C. § 1983 concerning a denial of medical

care, plaintiff “must allege acts or omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A prisoner

who is allowed to suffer needlessly through a denial of medical care when relief is available has

a cause of action under the Eighth Amendment against an individual whose deliberate

indifference caused the suffering. Plaintiff must allege that prison officials have denied his

reasonable requests for medical care when such need is obvious, and when he is susceptible to

undue suffering or threat of tangible residual injury. Byrd v. Wilson, 701 F.2d 592, 594 (6th Cir.

1983); Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976). Where medical assistance has been

administered, such treatment must be so “woefully inadequate as to amount to no treatment at

all” in order to give rise to a cause of action under § 1983. Westlake, 537 F.2d at 860-61 n.5.

Not every claim of inadequate medical treatment states an Eighth Amendment violation. Estelle,

429 U.S. at 105. Allegations of negligence in diagnosing or treating medical conditions are not

actionable under § 1983. Estelle, 429 U.S. at 106; Byrd, 701 F.2d at 595 n.2; Westlake, 537 F.2d

at 860-61 n.5. A prison official may be held liable under the Eighth Amendment for denying

humane conditions of confinement, including proper medical care, only if “he knows that

inmates face a substantial risk of serious harm and disregards that risk by failing to take

reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).

Plaintiff’s complaint fails to allege facts showing that defendant Mick was deliberately

indifferent to his medical needs. Plaintiff states that Mick provided an undisclosed application

before he was taken to the medical department. Plaintiff fails to allege any facts to suggest that

Mick delayed or interfered with his medical care, prevented him from obtaining treatment

following the incident, or otherwise was deliberately indifferent to his medical needs. Although

plaintiff claims the treatment/application provided by Mick was “improper,” “[w]here a prisoner

has received some medical attention and the dispute is over the adequacy of the treatment, federal

courts are generally reluctant to second guess medical judgments and to constitutionalize claims

that sound in state tort law.” Westlake, 537 F.2d at 860 n. 5. It is well-settled that “a complaint

that a physician has been negligent in diagnosing or treating a medical condition does not state a

valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not

become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at

106. “[A]n inadvertent failure to provide adequate medical care cannot be said to constitute ‘an

unnecessary and wanton infliction of pain’ or to be ‘repugnant to the conscience of mankind.’”

Estelle, 429 U.S. at 105-106. Plaintiff’s allegations may amount to negligent treatment, but

without more the Court is unable to conclude that plaintiff’s complaint states a claim for relief

under the Eighth Amendment for deliberate indifference to serious medical needs. Therefore, the

complaint against should be dismissed as to defendant Mick.3

IT IS THEREFORE RECOMMENDED THAT:

1. The plaintiff’s complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§

1915(e)(2)(B) and 1915A(b).

2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an

appeal of any Order adopting this Report and Recommendation would not be taken in good faith

and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth, 114

F.3d 601 (6th Cir. 1997).

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after being served

with a copy thereof. That period may be extended further by the Court on timely motion by either

3 Plaintiff has not pled a state-law negligence claim in his complaint. In any event, federal courts are generally

reluctant to exercise supplemental jurisdiction over state-law claims where the federal claims are dismissed. See

Harper v. AutoAlliance Int'l, Inc., 392 F.3d 195, 210 (6th Cir. 2004) (although the exercise of supplemental jurisdiction

under 28 U.S.C. § 1367 is a matter of discretion, when a court dismisses all federal claims before trial, it generally

should dismiss the state law claims as well). Nor has plaintiff established that the Court would have diversity

jurisdiction over any state-law claim. In order for diversity jurisdiction pursuant to § 1332(a) to lie, the citizenship of

the plaintiff must be “diverse from the citizenship of each defendant” thereby ensuring “complete diversity.”

Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (citing State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 531

(1967)); see also Napletana v. Hillsdale College, 385 F.2d 871, 872 (6th Cir. 1967); Winningham v. North American

Res. Corp., 809 F. Supp. 546, 551 (S.D. Ohio 1992). Additionally, the amount in controversy must “exceed[] the sum

or value of $75,000, exclusive of interest and costs.” 28 U.S.C. § 1332(a). The complaint does not allege that the

citizenship of plaintiff and each defendant is diverse. 28 U.S.C. § 1332(1). Rather, it appears that plaintiff and

defendant Mick are both citizens of Ohio. (See Doc. 1-2, Complaint at PageID 16). Moreover, plaintiff’s complaint

merely states that it seeks “damages in excess of $25,000.00.” (Doc. 1 at PageID 19). It does not allege that plaintiff’s

claims satisfy the $75,000 amount-in-controversy requirement for this Court’s exercise of diversity jurisdiction.

side for an extension of time. All objections shall specify the portion(s) of the R&R objected to,

and shall be accompanied by a memorandum of law in support of the objections. A party shall

respond to an opponent’s objections within FOURTEEN DAYS after being served with a copy

of those objections. Failure to make objections in accordance with this procedure may forfeit

rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947

(6th Cir. 1981).

Date: December 19, 2022 s/ Elizabeth A. Preston Deavers_______

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE