Burke v. Aramark Correctional Services

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

NORMAN BURKE, : Case No. 2:22-cv-4421

:

Plaintiff, :

: District Judge Algenon L. Marbley

vs. :

Magistrate Judge Elizabeth P. Deavers

:

ARAMARK CORRECTIONAL :

SERVICES, et al., :

:

Defendants.

ORDER AND

REPORT AND RECOMMENDATION

Plaintiff, a prisoner previously at the Warren Correctional Institution (WCI), currently

located at the Chillicothe Correctional Institution, has filed a pro se civil rights complaint

pursuant to 42 U.S.C. § 1983 against thirty defendants, including Aramark Correctional Services,

the Ohio Department of Rehabilitation and Correction (ODRC), ODRC officials, and WCI

employees. (Doc. 1-1, Complaint at PageID 8-12).1 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).

1 Complaints based on similar factual allegations were filed in the following related cases: Woods

v. Aramark Corr. Servs., Case No. 2:22-cv-4220 (S.D. Ohio Dec. 19, 2022); King v. Aramark

Corr. Servs., Case No. 2:23-cv-156 (S.D. Ohio Jan. 12, 2023). See also Thompson v. Aramark

Corr. Servs., Case No. 2:23-cv- 1275 (S.D. Ohio Apr. 11, 2023).

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)(2) 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

2 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

In the complaint, plaintiff alleges that he was served contaminated food during dinner on

November 27, 2021 while at WCI. (Doc. 1-1, Complaint at PageID 16). According to plaintiff,

defendant Aramark, Aramark coordinator Woods, John/Jane Doe Aramark supervisor, and other

ODRC correctional officers intentionally served plaintiff and other inmates food out of a trash can.

(Id.). Plaintiff alleges that defendant Sgt Maggard reviewed the November 27, 2021 food service

video footage with plaintiff. According to plaintiff, the video shows Woods retrieving beans out

of the trash can and putting them on the serving line. (Id. at 18). Plaintiff further alleges that

defendants Aramark employee Ms. Moody and C.O. Moody both confirmed that the food was

served from the trash can.

Plaintiff alleges that hours after dinner, he experienced symptoms in the form of upset

stomach, cramps, severe diarrhea, and vomiting. (Id. at PageID 16). After his symptom persisted

for several days, plaintiff alleges that a correctional officer informed plaintiff that two inmate food-

workers—inmates Edward Smith and Richard Burton—alerted a lieutenant and officer that

defendant Woods “had retrieved beans from a contaminated trash can, and had them placed on

trays to be served.” (Id. at PageID 17). According to plaintiff, he was informed that Smith and

Burton were placed in segregation in an attempt to silence them.

On December 2, 2021, plaintiff claims that he filed a kite with defendant institutional

inspector Isaac Bullock concerning the November 27, 2021 dinner. Plaintiff claims that Bullock

informed plaintiff that the issue “has been verified and addressed” and that “[c]orrective actions

have been taken.” (Id.). Plaintiff alleges that instead of directing staff to send plaintiff to medical,

Bullock informed plaintiff that he would have to complete a health service request for his medical

needs, which plaintiff notes would take several days. According to plaintiff, ODRC medical staff

refused to see him in an alleged effort to cover up that contaminated food was served and to avoid

diagnosing plaintiff. (Id. at PageID 18-19). As detailed below, plaintiff alleges that instead of

providing him with medical care, defendants attempted to cover-up the incident and retaliated

against inmates who sought medical attention or filed grievances.

Plaintiff alleges that defendant Jane Doe health-care administrator provided a list of all

inmates who reported stomach issues to defendants Bullock, Agee and Tatman.3 (Id. at PageID

19). According to plaintiff, on December 5, 2021, defendant officer Cook informed plaintiff that

he and the other inmates reporting symptoms would not be permitted to leave their cells until they

had a conversation with a “white shirt,” which plaintiff indicates refers to a major, captain,

lieutenant, or sergeant. Plaintiff alleges that defendant Lt. Tatman—sent by Captain Agee—

subsequently screamed at the inmates reporting symptoms, noting that he had seen their medical

complaints and stating that “I’m locking the entire Unit down, because we fired the bitch what else

do you want us to do? . . . “You[’]r[e] sick so what . . . sleep it the fuck off.” (Id.). Tatman

allegedly attempted to intimidate inmates from going to medical or further reporting their

symptoms, threating that he would make their lives living hell if his “staff gets in trouble over that

Aramark bitch” and presented them with a choice to go to medical or remain locked down. (Id.).

According to plaintiff, family members of the impacted inmates called the institution,

demanding that their family members be seen by medical or they would contact the state troopers.

(Id. at PageID 20). Plaintiff claims that he and nine other inmates were subsequently escorted to

medical by defendant Ms. Penunzio. Although he was taken to medical, plaintiff claims that

3 In doing so, plaintiff claims that defendant violated the Health Insurance Portability and

Accountability Act (“HIPPA”). (See Doc. 21). However, “HIPPA regulations do not confer a

private right of action on an individual.” Burley v. Rider, No. 1:17-CV-88, 2018 WL 6033531, at

*5 (W.D. Mich. Aug. 27, 2018), report and recommendation adopted, No. 1:17-CV-88, 2018 WL

4443071 (W.D. Mich. Sept. 18, 2018). Out of an abundance of caution and as indicated below,

plaintiff may proceed with the complaint against this defendant, as the Court liberally construes

the complaint to allege that defendant acted within the alleged course of retaliation.

defendants nurse practitioners Sky and Rachel conducted a “fake screening” consisting solely of

checking their blood pressure before stating “well we seen you.” (Id.). Plaintiff further alleges

that instead of providing him with any treatment, the defendant nurses made jokes about the

inmates being fed out of the trash can and stated “this is what you signed up for coming to prison.”

(Id. at PageID 24).

Plaintiff claims the inmates were taken from medical and placed on “quarantine status”

until December 9, 2021, as a punishment for filing grievances and seeking medical treatment. (Id.

at PageID 20-21). During this time, plaintiff claims that he was so sick he could not leave his bed,

but that defendants Epperson and Farmer disregarded his requests to see medical. (Id. at PageID

21). Agee allegedly attributed the lockdown to COVID-19, however plaintiff notes that this

contradicts Tatman’s earlier comments and that none of the inmates were tested for COVID-19.

During the lockdown, which plaintiff claims was only imposed against those who sought medical

after Tatman’s comments, plaintiff claims inmates were restricted from filing grievances or

complaints.

Plaintiff claims that on December 6, 2021, after he continued to demand medical attention,

plaintiff and other inmates were taken to medical. According to plaintiff, he saw defendant John

Doe doctor, who indicated that “nobody says you all have COVID-19,” refused to diagnose

plaintiff or others, and kept them on “quarantine status,” despite failing to explain why they were

locked down. (Id. at PageID 22). Plaintiff claims defendant warden Mitchell-Jackson was present

and spoke with medical staff at this time. According to plaintiff, Jackson yelled at the inmates

about having to come into work early because of them and otherwise refused to converse with

them.

Plaintiff claims that defendants Luneke, Back, Williams, Macintosh, Wells, and several

others subsequently held a “town hall meeting,” during which Luneke stated that inmates were not

transferring institutions for at least eight weeks, their doors were to remain closed, and no questions

were to be answered regarding “Aramark.” (Id. at PageID 22). Plaintiff alleges that defendants

placed them on lock-down “to prevent plaintiff and the other inmates from exposing that they were

fed contaminated food by Aramark” and in retaliation for filing informal complaints and for

seeking information and medical attention in connection with the allegedly contaminated food.

(Id. at PageID 23).

On or around January 10, 2022, plaintiff alleges that all the inmates in the unit were

transferred to the Chillicothe Correctional Center on an “emergency transfer.” (Id.).

As relief, plaintiff seeks monetary damages. (Id. at PageID 26).

C. Analysis.

Based on the above factual allegations, the Court understands plaintiff to bring Eighth

Amendment deliberate indifference and First Amendment retaliation claims, as well as state-law

claims, against defendants in their individual and official capacities. (See id. at PageID 23-25).

At this stage in the proceedings, without the benefit of briefing by the parties to this action,

the undersigned concludes that plaintiff may proceed with his First and/or Eighth Amendment

claims (as well as his supplemental state-law claims) against defendants Woods, John/Jane Doe

Aramark supervisor, nurse Sky, nurse Rachel, John Doe physician, Jane Doe health-care

administrator, Agee, Tatman, Mitchell-Jackson, Bullock, Williams, Cook, Luneke, Back,

Macintosh, Wells, Farmer, and Epperson in their individual capacities. As detailed above, plaintiff

alleges that these defendants intentionally served him and others contaminated food, denied him

medical treatment/were deliberately indifferent to his medical needs, and/or retaliated against him.

These claims are deserving of further development and may proceed at this juncture.

Plaintiff’s remaining claims should be dismissed. See 28 U.S.C. §§ 1915(e)(2)(B) &

1915A(b).

As an initial matter, plaintiff’s claims against the state defendants in their official capacities

are subject to dismissal. As noted above, plaintiff seeks relief in the form of money damages. (See

Doc. 1 at PageID 26). Absent an express waiver, a state is immune from damage suits under the

Eleventh Amendment. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, 506 U.S. 139 (1993);

Edelman v. Jordan, 415 U.S. 651 (1974). The State of Ohio has not constitutionally nor statutorily

waived its Eleventh Amendment immunity in the federal courts. See Johns v. Supreme Court of

Ohio, 753 F.2d 524 (6th Cir. 1985); State of Ohio v. Madeline Marie Nursing Homes, 694 F.2d

449 (6th Cir. 1982). The Eleventh Amendment bar extends to actions where the state is not a

named party, but where the action is essentially one for the recovery of money from the state.

Edelman, 415 U.S. at 663; Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464 (1945). A suit

against defendants in their official capacities would, in reality, be a way of pleading the action

against the entity of which defendants are agents. Monell v. Dep’t of Social Servs., 436 U.S. 658,

690 (1978). Thus, actions against state officials in their official capacities are included in this bar.

Will v. Michigan Dept. of State Police, 491 U.S. 58, 70-71 (1989); Scheuer v. Rhodes, 416 U.S.

232 (1974). See also Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (citing Cady v. Arenac

Co., 574 F.3d 334, 344 (6th Cir. 2009) (“[A]n official-capacity suit against a state official is

deemed to be a suit against the state and is thus barred by the Eleventh Amendment, absent a

waiver.”) (citation and ellipsis omitted)). Therefore, all of the named state defendants are immune

from suit in their official capacities to the extent that plaintiff seeks monetary damages.

The complaint must also be dismissed against defendants Bratton, Stanforth, Sandman,

Ms. S, and Kearns. Although these individuals are named as defendants to this action, the

complaint contains no factual allegations against them. To survive dismissal for failure to state a

claim upon which relief may be granted, plaintiff must plead factual content that allows the Court

to reasonably infer that a named defendant is liable for the alleged misconduct. Iqbal, 556 U.S. at

678. Absent any specific factual allegations against these defendants, the complaint should be

dismissed as to defendants Bratton, Stanforth, Sandman, Ms. S, and Kearns for failure to state a

claim upon which relief may be granted.

Similarly, the complaint should be dismissed against defendants Ms. Penunzio, Ms. Morris,

Sgt. Maggard, Ms. Moody, and C.O. Moody. Plaintiff has pled insufficient facts to suggest that

these defendants violated his rights. Plaintiff’s only allegations against defendants Penunzio and

Morris is that Penunzio escorted him and other inmates to medical and that Ms. Morris was

working when Jane Doe health administrator “retrieved medical paperwork held at the desk area

of the unit.” (See Doc. 1-1, Complaint at PageID 20, 22). With respect to defendants Maggard,

Ms. Moody, and C.O. Moody, plaintiff alleges that these defendants confirmed that contaminated

food was served. (Id. at 18). The complaint includes no factual allegation that these defendants

served plaintiff contaminated food, denied him medical treatment, or retaliated against him. To

the extent that plaintiff seeks to hold Sgt. Maggard liable based on his supervisory position or

failure to intervene or correct the conduct of others (see id.), Ҥ 1983 liability must be based on

more than respondeat superior, or the right to control employees.” Shehee v. Luttrell, 199 F.3d

295, 300 (6th Cir. 1999) (citing Hays v. Jefferson Cnty., Ky., 668 F.2d 869, 874 (6th Cir. 1982)).

Plaintiff’s allegations against these defendants are insufficient to plausibly set forth an actionable

claim.

The complaint should also be dismissed as to the ODRC and Aramark. Title 42 U.S.C. §

1983 provides that “[e]very person who, under the color of any statute . . . subjects, or causes to

be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party injured . . . .” 42

U.S.C. § 1983. A correctional facility is not a “person” subject to suit under 42 U.S.C. § 1983.

See Parker v. Michigan Dept. of Corrs., 65 F. App’x 922, 923 (6th Cir. 2003) (holding that

Department of Corrections not a “person” under § 1983). See also, e.g., McGlone v. Warren Corr.

Inst., No. 1:13cv126, 2013 WL 1563265, at *3 (S.D. Ohio Apr. 12, 2013) (Bowman, M.J.) (Report

& Recommendation) (and numerous cases cited therein) (holding that claims against a state prison

and the ODRC should be dismissed at the screening stage because “neither the state prison facility

nor the state corrections department is an entity capable of being sued under § 1983”), adopted,

2013 WL 2352743 (S.D. Ohio May 29, 2013) (Dlott, J.); see also Hix v. Tennessee Dep’t of Corr.,

196 F. App’x 350, 355-56 (6th Cir. 2006) (and cases cited therein); Rodgers v. Michigan Dep’t of

Corr., 29 F. App’x 259, 260 (6th Cir. 2002). Accordingly, the complaint should be dismissed

against the ODRC.

The complaint should also be dismissed as to Aramark. Plaintiff seeks to hold Aramark

liable for its “personel[’s] failure to practice good food handling procedures and sanitation.” (Doc.

1-1, Complaint at PageID 16). However, plaintiff may not hold Aramark liable based on the

conduct of its employees, as the theory of respondeat superior does not apply to § 1983 claims

and may not serve as a basis for liability. See Iqbal, 556 U.S. at 676; Monel, 436 U.S. 658; 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 122849, 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.”). Because plaintiff has failed to allege facts that would subject Aramark to liability

itself, see Harris v. Aramark Corr. Servs., No. 20-3343, 2021 WL 7543808, at *3 (6th Cir. Dec.

27, 2021), Aramark should be dismissed as a defendant to this action.

Accordingly, in sum, plaintiff may proceed with this action against defendants Woods,

John/Jane Doe Aramark supervisor, nurse Sky, nurse Rachel, John Doe physician, Jane Doe

health-care administrator, Agee, Tatman, Mitchell-Jackson, Bullock, Williams, Cook, Luneke,

Back, Macintosh, Wells, Epperson, and Farmer in their individual capacities.

Having found that the remaining claims alleged in the complaint fail to state a claim upon

which relief may be granted, plaintiff’s remaining claims should be dismissed. See 28 U.S.C. §§

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

IT IS THEREFORE RECOMMENDED THAT:

1. The complaint be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) & 1915A(b),

with the exception of plaintiff’s claims against defendants Woods, John/Jane Doe Aramark

supervisor, nurse Sky, nurse Rachel, John Doe physician, Jane Doe health-care administrator,

Agee, Tatman, Mitchell-Jackson, Bullock, Williams, Cook, Luneke, Back, Macintosh, Wells,

Epperson, and Farmer in their individual capacities.

2. The Court DECLINE to exercise supplemental jurisdiction under 28 U.S.C.

§ 1367(c)(3) over any state-law claims against the dismissed defendants, and DISMISS any such

claims without prejudice. See Maze v. Ironton Police Dep’t, No. 1:20-cv-402, 2020 WL

3605865, at *5 (S.D. Ohio July 2, 2020), (Report and Recommendation), adopted, No. 1:20-cv-

402, 2020 WL 5094843 (S.D. Ohio Aug. 28, 2020).

3. 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).

IT IS THEREFORE ORDERED THAT:

1. The United States Marshal shall serve a copy of the complaint, summons, the Order

granting plaintiff in forma pauperis status, and this Order and Report and Recommendation upon

defendants Woods, nurse Sky, nurse Rachel, Agee, Tatman, Mitchell-Jackson, Bullock,

Williams, Cook, Luneke, Back, Macintosh, Wells, Epperson, and Farmer with costs of service

to be advanced by the United States.

Before service may be issued upon the remaining unidentified defendants— John/Jane

Doe Aramark supervisor, John Doe physician, and Jane Doe health-care administrator—plaintiff

must file a motion to issue service setting forth the identity of the unidentified defendant.

Plaintiff is therefore ORDERED to file a motion to issue service, including United States

Marshal and summons forms, if and when plaintiff discovers the identity of the unnamed

defendants through discovery. Plaintiff is advised that no service will be issued on the unnamed

defendants unless plaintiff complies with this Order.

2. Plaintiff shall serve upon defendants or, if appearance has been entered by counsel,

upon defendants’ attorney(s), a copy of every further pleading or other document submitted for

consideration by the Court. Plaintiff shall include with the original paper to be filed with the

Clerk of Court a certificate stating the date a true and correct copy of any document was mailed

to defendants or defendants’ counsel. Any paper received by a district judge or magistrate judge

which has not been filed with the Clerk or which fails to include a certificate of service will be

disregarded by the Court.

3. Plaintiff shall inform the Court promptly of any changes in his address which may

occur during the pendency of this lawsuit.

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

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: May 17, 2023 s/ Elizabeth A. Preston Deavers_

Elizabeth A. Preston Deavers

United States Magistrate Judge