Woods v. Aramark Correctional Services

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

FRANKLIN WOODS,

Plaintiff,

Case No. 2:22-cv-4420

vs. Judge Algenon L. Marbley

Magistrate Judge Elizabeth P. Deavers

ARAMARK CORRECTIONAL

SERVICES, et al.,

Defendants.

REPORT AND RECOMMENDATION AND ORDER

Plaintiff, Franklin Woods, currently an inmate at the Chillicothe Correctional Institution

(“CCI”) who is proceeding without counsel, brings this civil rights action under 42 U.S.C. §

1983. Currently before the Court are Motions for Judgment on the Pleadings filed by certain

State Defendants and the State of Ohio as an interested party (collectively, the “ODRC

Defendants.”) (ECF Nos. 43, 83.) Also before the Court is a Motion to Dismiss filed by

Defendant Tim Barttrum, identified by Plaintiff as “Jane/John Doe ‘Aramark Supervisor.’”

(ECF No. 90.) All of these motions have been fully briefed. (ECF Nos. 56, 58; 89, 91; 98,

101.) As set forth below, it is RECOMMENDED that the motions be GRANTED.

I. BACKGROUND

This case is the first-filed of six related cases filed by inmates, several of whom currently

are incarcerated at CCI. These cases all arise from an incident that occurred on November 27,

2021, when these same inmates were incarcerated at the Warren Correctional Institution

(“WCI”). The operative complaints in these cases, while not strictly identical, generally contain

the same allegations. Briefly, each Plaintiff alleges that an Aramark employee served food

removed from a trash can to inmates in plaintiffs’ housing unit and plaintiffs experienced minor

short term gastrointestinal issues in the following days. Each Plaintiff names approximately 25

or more defendants1 and asserts a variety of claims ranging from an Eighth Amendment

conditions of confinement claim to an equal protection claim. Service in all of the cases,

including this one, has not been successful on all Defendants.

In the Report and Recommendation screening Plaintiff’s initial Complaint, the Court

summarized the specific factual allegations of this case as follows:

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 19).

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. at PageID 20).

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

of upset stomach, cramps, severe diarrhea, and vomiting. After his symptom

persisted for several days, plaintiff indicates that he submitted a medical request.

On December 2, 2021, a correctional officer allegedly 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

21). According to plaintiff, he was informed that Smith and Burton were placed in

segregation in an attempt to silence them.

Plaintiff claims that he filed an informal complaint with the deputy warden

concerning the November 27, 2021 dinner. Plaintiff claims that defendant

institutional inspector Isaac 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 claims would take several days.

As suggested by Bullock and after plaintiff’s symptoms became worse, plaintiff

submitted a health service request form explaining his health issues and indicating

that his symptoms resulted from consuming contaminated food. (Id. at PageID 22).

1 Aside from certain Aramark Defendants, Plaintiffs essentially name as Defendants any ODRC

employee with whom they came into contact between November 27, 2021 and the date of their

transfer to CCI.

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.

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

to prison staff of all inmates who reported stomach issues. 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 defendant 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. at PageID 23).

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. 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 defendants nurse practitioners Sky and

Rachel conducted a “fake screening” consisting solely of checking their blood

pressure before stating “well we seen you.” (Id. at PageID 23). 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. According to plaintiff, Agee 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 alleges inmates were restricted from filing grievances

or complaints. (Id. at PageID 24-25). Plaintiff further alleges that after he continued

to seek medical attention, that the impacted inmates were eventually taken to

medical to see 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 25). Plaintiff claims defendant warden Mitchell-Jackson was present and

spoke with medical staff at this time. According to plaintiff, Mitchell-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 25). 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 27, 28).

On or around January 10, 2022, plaintiff claims that all of the inmates in the unit

were transferred to the Chillicothe Correctional Institution on “an emergency ride-

out.” (Id. at PageID 26). Plaintiff alleges that he spoke to Williams and Bullock

about obtaining a “legal box,” apparently to transport his legal documents. (Id. at

PageID 26-27). According to plaintiff, Williams and Bullock used demeaning

language against him before stating that he would not be provided with a legal box,

to “[t]ell his family to call about that,” and that plaintiff “should not have gone to

medical.” (Id. at PageID 27). Plaintiff claims that Bullock provided legal boxes to

inmates who did not consume the contaminated food. Plaintiff maintains Bullock

and other staff members retaliated against plaintiff for filing informal complaints,

going to medical, and requesting information regarding Aramark.

As relief, plaintiff seeks monetary damages. (Id. at PageID 30).

(ECF No. 5 at 4-7.)

Following the filing of the initial Report and Recommendation, Plaintiff filed a motion to

amend and an amended complaint (ECF Nos. 9, 10) and a motion for leave to file a Second

Amended Complaint. (ECF No. 16.) The Second Amended Complaint included additional

factual allegations not contained in the original complaint, altered or identified some of the

named defendants, and included an additional claim brought under the Equal Protection Clause.

By Order dated December 12, 2023 (ECF No. 22), the Court granted Plaintiff’s motions for leave

to amend the Complaint, screened the Second Amended Complaint as the operative complaint,

and vacated the earlier Report and Recommendation. (Id.) In screening the Second Amended

Complaint, the Court concluded that it was deserving of further development and allowed all of

Plaintiff’s claims to proceed. (Id.) The Court noted, however, that it had not made a

determination as to the merits of the claims or potential defenses and that Defendants were not

precluded from filing a motion to dismiss or other appropriate motion under the Federal Rules of

Civil Procedure. (Id.)

The Second Amended Complaint names 28 Defendants in total, including Aramark

Correctional Services (“Aramark”), “Jane/John Doe ‘Aramark Supervisor,’” and “Ms. Woods,”

described as employed by Aramark as a manager (collectively, the “Aramark Defendants.”)

(ECF No. 31 at ⁋⁋ 3, 4, 5.) Also named as Defendants are 25 individuals identified as ODRC

employees, including Wanza Mitchell-Jackson, Isaac Bullock, Sgt. J. Maggard, Steven

Williams, Case Manager Kearns, Karen Stanforth, Captain David Agee, Captain Jason Back, Lt.

Tim Tatman, C.O. Koch, C.O. John Wells, C.O. Ms. Sedlitz, Sky Murray, Nurse Practitioner

Rachel Allen, Dr. William Harlan, C.O. Ms. Kimberly Panunzio, Rodney Macintosh, Dr.

Raymond Corbett, Douglas Luneke, C.O. Fredrick Epperson, C.O. Larry Farmer, Lt. Kayla

Stabelton,2 Deputy Warden Robert Welch, Meredyth McLaughlin, and Lt. David Sandridge

(collectively, “the ODRC Defendants”). (Id. at ⁋⁋ 6-30.)

The Court’s docket confirms that Plaintiff has not completed service on Aramark. With

respect to Ms. Woods, Plaintiff submitted a summons directed to “Ms. Woods ‘Aramark

Manager’” at Aramark’s corporate address and the Clerk issued summons. (ECF No. 32.) On

May 13, 2024, counsel for Aramark moved for leave to file instanter an answer on “Ms.

Woods’” behalf. (ECF No. 39.) Counsel stated that “… a copy of the Second Amended

Complaint filed in this case was received by Aramark at its corporate office in Philadelphia,

2 Plaintiff also refers to this Defendant as Lt. Kayla Stebelton in the caption of his Second

Amended Complaint. (ECF No. 31.)

Pennsylvania. Counsel represents that Aramark is not presently aware of an employee by the

name ‘Woods’ who worked at Warren Correctional Institute between 2020 – present, which is

the location and relevant period for the conduct alleged in Plaintiff’s Second Amended

Complaint, but files this answer out of an abundance of caution to avoid a default judgment

against an employee.” (Id. at n. 1.) With respect to the ODRC Defendants, Plaintiff has not

completed service on Isaac Bullock, Sgt. J. Maggard, Rodney Macintosh, Captain Jason Back,

C.O. Koch, C.O. John Wells, Rachel Allen, C.O. Ms. Kimberly Panunzio, C.O. Larry Farmer or

Lt. Kayla Stabelton. In the first-filed Motion for Judgment on the Pleadings, the State of Ohio

explains that, under R.C. § 109.361, the Ohio Attorney General may appear in any civil action in

order to protect the interest of the State even though no request for appearance has been made by

the officer or employee. Such appearance does not waive personal service and any defenses

available at law. (ECF No. 43 at n.1.)

As noted, for purposes of the current motions, the Second Amended Complaint is the

operative pleading. The overall gist of Plaintiff’s factual allegations do not vary greatly from

those set forth above. One notable exception is the addition of allegations that Aramark’s

policies and customs are designed to incentivize money saving measures, including, inter alia,

failing to comply with proper sanitation measures. (ECF No. 31 at ⁋⁋ 133-144.) To the extent

that any additional factual allegations are relevant to the pending motions, the Court will address

them in the context of addressing the motions. The Court considers the pending motions in turn.

II. TIM BARTTRUM’S MOTION TO DISMISS

Mr, Barttrum has moved to dismiss, raising several issues. First, he explains that he was

served with a copy of the Second Amended Complaint as the “Aramark Supervisor AKA

President” at Aramark’s principal place of business in Pennsylvania. (ECF No. 90.) Aside

from this, he asserts that the Second Amended Complaint does not allege his personal

involvement in any of the activity forming the basis of Plaintiff’s claims. Further, he contends

that Plaintiff’s claims against him fails because they are based solely on his alleged supervisory

authority in his role as Aramark’s president. Additionally, Mr. Barttrum asserts that Plaintiff’s

Eighth Amendment conditions of confinement claim arising from a single incident of allegedly

being served contaminated food fails to satisfy both the objective and subjective requirements of

such a claim. Finally, he argues that Plaintiff’s Equal Protection claim is too generalized to

proceed. The Court agrees that any claims Plaintiff may be attempting to assert against Mr.

Barttrum should be dismissed.

A. Legal Standard

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal

Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements set forth

in Federal Rule of Civil Procedure 8(a). 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)

(emphasis in original).

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).

In considering whether a complaint fails to state a claim upon which relief can be granted,

the Court must “construe the complaint in the light most favorable to the plaintiff, accept its

allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Ohio Police &

Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012)

(quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet that a

court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a

cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663.

Thus, while a court is to afford plaintiff every inference, the pleading must still contain facts

sufficient to “provide a plausible basis for the claims in the complaint”; a recitation of facts

intimating the “mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz–Craft

Corp of Mich., Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679. 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)).

A. Analysis

As Mr. Barttrum notes, the Second Amended Complaint contains no allegations of

activity in which he was involved. At best, to the extent that Plaintiff has identified Mr.

Barttrum, as the “Jane/John Doe ‘Aramark Supervisor,’” any allegations that could be construed

as asserted against Mr. Bartturm are conclusory and non-specific as discussed in more detail

below. This alone is a sufficient basis on which to recommend granting the motion to dismiss.

Where a person is named as a defendant without an allegation of specific conduct, the complaint

is subject to dismissal, even under the liberal construction afforded to pro se complaints. Leoni

v. Bailey, No. 1:22-CV-1086, 2023 WL 370501, at *3 (W.D. Mich. Jan. 24, 2023) (citing Frazier

v. Michigan, 41 F. App'x 762, 764 (6th Cir. 2002) (dismissing the plaintiff's claims where the

complaint did not allege with any degree of specificity which of the named defendants were

personally involved in or responsible for each alleged violation of rights)).

Further, given Plaintiff’s manner of pleading, the Court presumes that Plaintiff has named

Mr. Barttrum as a defendant based on his role as Aramark’s president. This also warrants

dismissal of Plaintiff’s claims purportedly directed to Mr. Barttrum. The doctrine of respondeat

superior, or the right to control employees, does not apply in § 1983 actions to impute liability

onto supervisors. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 691 (1978).

Instead, “proof of personal involvement is required for a supervisor to incur personal liability.”

Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008). In short, Plaintiff’s allegations do not give

rise to a reasonable inference that Defendant Barttrum, in his role as Aramark’s president, had

any involvement in the food service incident at WCI on November 27, 2021, which forms the

basis of Plaintiff’s various claims here.

These simple truths aside, for the additional reasons discussed in more detail below, any

claim against Mr. Barttrum asserted under a failure to train theory of liability, any Eighth

Amendment conditions of confinement claim arising from a single food service incident, and any

attempted Equal Protection claim are without merit. Accordingly, it is RECOMMENDED that

Mr. Barttum’s Motion to Dismiss be GRANTED in its entirety.

III. MOTIONS FOR JUDGMENT ON THE PLEADINGS

A. Legal Standard

A motion for judgment on the pleadings made under Federal Rule of Civil Procedure

12(c) is analyzed in the same manner as a motion to dismiss under Rule 12(b)(6). See Tucker v.

Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008). To overcome such a motion, “a

complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial

plausibility 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. (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007)). The complaint need not contain detailed factual

allegations, but it must include more than labels, conclusions, and formulaic recitations of the

elements of a cause of action. Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

A motion for judgment on the pleadings should be granted when there is no material

issue of fact, and the moving party is entitled to judgment as a matter of law. Tucker, 539 F.3d at

549. These standards apply equally when the plaintiff is pro se. Although a pro se litigant is

entitled to a liberal construction of his pleadings and filings, he still must do more than assert

bare legal conclusions, and the “complaint must contain either direct or inferential allegations

respecting all the material elements to sustain a recovery under some viable legal theory.”

Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).

B. Analysis

Although not neatly delineated in his 156-paragraph Second Amended Complaint,

Plaintiff appears to set forth two distinct Eighth Amendment claims against various ODRC

Defendants. First, he asserts an Eighth Amendment conditions of confinement claim arising

from what he believes to have been food poisoning from unknowingly eating what he alleges

was contaminated food removed from a trash can and knowingly served to him by an Aramark

employee. He also asserts that he was delayed or denied proper medical treatment for alleged

food poisoning symptoms he suffered following that incident. He broadly alleges that all ODRC

Defendants were deliberately indifferent to his circumstances in various ways. Indeed, he

alleges certain Defendants failed to act on the knowledge that Plaintiff was served food from a

trash can, other Defendants failed to advise Plaintiff that his illness was the result of consuming

allegedly contaminated food, and medical staff did not immediately respond to his reports of

stomach pain. Plaintiff also alleges HIPAA violations, yelling and threats, and failure to comply

with certain ODRC policies. Additionally, Plaintiff asserts an equal protection claim and state

law claims for negligence and emotional distress. Plaintiff’s allegations, construed in his favor,

also suggest he is asserting a First Amendment retaliation claim, although he does not

specifically identify such a claim.

In moving for judgment on the pleadings, the ODRC Defendants assert that, with respect

to Plaintiff’s claim arising from allegedly eating contaminated food, Plaintiff does not allege that

any of them fed him such food. According to these Defendants, at most, Plaintiff alleges that Lt.

Sandridge and Ms. Sedlitz were aware of the contaminated food and allowed him to eat it

anyway. Further, the ODRC Defendants contend that Plaintiff cannot meet the deliberate

indifference standard for any Eighth Amendment claim. With respect to Plaintiff’s retaliation

claim, the ODRC Defendants argue that Plaintiff fails to sufficiently allege any elements of such

a claim. These Defendants also assert that any claims against them in their official capacities are

barred by the Eleventh Amendment, Plaintiff’s generalized Equal Protection claim and any

failure to train claim fail as a matter of law, and they are entitled to qualified immunity under the

circumstances here. Finally, they request that the Court decline to exercise supplemental

jurisdiction over any state law claims.

As an initial matter, the Court agrees that all ODRC Defendants sued in their official

capacities are immune from suits for damages under the Eleventh Amendment. Maben v.

Thelen, 887 F.3d 252, 270 (6th Cir. 2018). Absent an express waiver, a state is immune from

damage suits under the Eleventh Amendment. Will v. Michigan Dep't of State Police, 491 U.S.

58, 66 (1989). The State of Ohio has not constitutionally nor statutorily waived its Eleventh

Amendment immunity in the federal courts. See Mixon v. State of Ohio, 193 F.3d 389, 397 (6th

Cir. 1999); 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 v. Jordan,

415 U.S. 651, 663 (1974). 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, 436

U.S. 658, 690. Thus, actions against state officials in their official capacities are included in this

bar. Will, 491 U.S. 58, 70-71. Accordingly, all of the named ODRC Defendants are immune

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

For these reasons, it is RECOMMENDED that the ODRC Defendants’ Motions for

Judgment on the Pleadings be GRANTED as to Plaintiff’s official capacity claims against them

for damages.

1. Eighth Amendment Claim Conditions of Confinement Claim

Before beginning its analysis, it is important that the Court define the specific nature of

Plaintiff’s conditions of confinement claim. Distilled down, Plaintiff’s allegations here involve

one instance of experiencing unsanitary food service at WCI on one date – November 27, 2021.

The ODRC Defendants do not dispute the fact of this incident and Plaintiff has both cited the

incident report confirming this event in the body of his pleading and attached a copy of the report

to it. (ECF No. 31at ⁋ 42; id. at Exhibit 1a.) To be sure, from this wholly isolated incident,

Plaintiff has built a lengthy narrative alleging conspiracy, concealment and deliberate

indifference, freely ascribing motivations based on little more than what appears to be his belief

that someone must be held responsible. At base, however, his claim is that an Aramark

employee knowingly served him food removed from a trash can, he consumed that food without

any awareness of that fact, and he suffered symptoms consistent with what he believes to have

been food poisoning. Although the Court understands that Plaintiff’s symptoms likely were

unpleasant and that, accepting Plaintiff’s allegations as true, serving food removed from a trash

can was imprudent, as explained below, Plaintiff’s allegations do not raise a claim of

constitutional proportion.

The starting point for the Court’s consideration of Plaintiff’s conditions of confinement

claim is the Eighth Amendment which protects all people from “cruel and unusual punishments.”

U.S. Const. Am. VIII.

[W]hen the State takes a person into its custody and holds him there against his

will, the Constitution imposes upon it a corresponding duty to assume some

responsibility for his safety and general well being...The rationale for this principle

is simple enough: when the State by the affirmative exercise of its power so

restrains an individual's liberty that it renders him unable to care for himself, and at

the same time fails to provide for his basic human needs—e.g., food, clothing,

shelter, medical care, and reasonable safety—it transgresses the substantive limits

on state action set by the Eighth Amendment....

Wilson v. Williams, 961 F.3d 829, 839 (6th Cir. 2020) (citing Helling v. McKinney, 509 U.S. 25,

32 (1993) (quoting DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 199-200

(1989))). “The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit

inhumane ones, and...‘the treatment a prisoner receives in prison and the conditions under which

he is confined are subject to scrutiny under the Eighth Amendment.’” Farmer v. Brennan, 511

U.S. 825, 832 (1994) (first quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981), then quoting

Helling, 509 U.S. at 31). “A prison official's ‘deliberate indifference’ to a substantial risk of

serious harm to an inmate violates the Eighth Amendment.” Id. at 828 (citations omitted).

The Eighth Amendment's deliberate indifference framework includes both an objective

and subjective prong. Id. at 834; Helling, 509 U.S. at 35-37. To satisfy the objective prong, an

inmate must show “that he is incarcerated under conditions posing a substantial risk of serious

harm.” Farmer, 511 U.S. at 834. The subjective component, on the other hand, requires inmates

to show that prison officials knew of and disregarded an excessive risk, thereby acting with

deliberate indifference. Smith v. DeWine, 476 F. Supp. 3d 635, 661 (S.D. Ohio 2020) (citing

Farmer, 511 U.S. at 834, 837-38). Under the subjective prong, an official must “know[ ] of and

disregard[ ] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.

Initially, Plaintiff has not alleged the personal involvement by any ODRC Defendant in

the food service incident forming the basis of his conditions of confinement claim. Instead, read

fairly, Plaintiff’s allegations regarding the food service incident are focused almost exclusively

on alleged after the fact conduct of various ODRC employees.

A defendant's personal liability in an action brought pursuant to 42 U.S.C. § 1983 hinges

upon the defendant official's personal involvement in the deprivation of the plaintiff's civil rights.

Nwaebo v. Hawk-Sawyer, 83 F. App'x 85, 86 (6th Cir. 2003). Indeed, “[e]ven a pro se prisoner

must link his allegations to material facts ... and indicate what each defendant did to violate his

rights ...” Sampson v. Garrett, 917 F.3d 880, 882 (6th Cir. 2019) (citations omitted). On this

basis, Plaintiff has failed to state an Eighth Amendment conditions of confinement claim against

any ODRC Defendants.

At most, Plaintiff alleges that Defendants Sandridge and Sedlitz had been “alerted” that

beans had been removed from a contaminated trash can and “placed on trays to be served.”

(ECF No. 31 at ⁋ 48.) Further, Plaintiff asserts that these Defendants were deliberately

indifferent to “[his] health and safety when they allowed [him] to eat contaminated food knowing

that it had been reported to them that the food was retrieved from a trash can.” (Id. at ⁋ 104.)

Despite these allegations, Plaintiff has failed to assert a conditions of confinement claim against

these two ODRC Defendants sufficient to withstand a motion for judgment on the pleadings.

First, Plaintiff has failed to show the objective component of such a claim. Even

accepting Plaintiff’s allegations as true, courts routinely hold that isolated instances of food

poisoning are not sufficiently serious to constitute an Eighth Amendment violation. As another

Judge of this Court has noted:

A review of the case law reflects broad acceptance of the reality that the provision

of the occasional disgusting, inedible, or unsanitary meal—even one that results in

food poisoning—does not satisfy the “objective” component of an Eighth

Amendment claim, particularly where no significant injury resulted.

Correa v. Cullum, No. 1:17-CV-300, 2018 WL 2020615, at *4 (S.D. Ohio May 1, 2018), report

and recommendation adopted, No. 1:17CV300, 2018 WL 2735635 (S.D. Ohio June 7, 2018).

For this reason, courts have rejected claims even when presented with allegations that a plaintiff

has ingested contaminated food.

In Correa, the Court dismissed Plaintiff’s claim amid allegations that he “inadvertently

ingested some portion of at least one [rat leg], which caused him to suffer an ‘actual injury ..

which he was unable to recover from.’” Id. at *5. As discussed in Correa, other factually

similar examples exist. In Velhuysen v. Aramark Correctional Servs., Inc., 2017 WL 236191

(W.D. Mich., Jan 19, 2017), the plaintiff alleged that he was served spoiled and moldy food on

four separate occasions, became violently ill with frequent bowel movements and vomiting, high

fever, upset stomach, vomiting, nausea and bloody bowel movements for 2-3 days after another

meal, and was served another deficient meal on a sixth date. Two of the alleged incidents

occurred on back-to-back days in December and three more were within the same week in

August. Nevertheless, the court held that all six incidents constituted only “isolated incidents”

that did “not constitute a sufficiently serious deprivation” under the objective component of the

Eighth Amendment. Id. at *2. Similarly, in Wiley v. Kentucky Dept. of Corrections, 2012 WL

5878678 (E.D. Ky. Nov. 21, 2012), the court dismissed an inmate's claim even though he alleged

that he vomited and experienced stomach spasms for three days after finding a dead rat in his

soup.

Wiley's allegations do not rise to the level of an Eighth Amendment violation.

Courts have consistently held that isolated incidents of foreign bodies, including

rodents and insects, surfacing in the food served to prisoners is not an Eighth

Amendment violation. Tucker v. Rose, 955 F.Supp. 810, 815 (6th Cir. 1997) (citing

Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285 (1974)). “The fact that the

[prison] food occasionally contains foreign objects or is sometimes served cold,

while unpleasant, does not amount to a constitutional deprivation.” Smith v.

Younger, No. 985482, 1999 WL 623355, at *2 (6th Cir. Aug. 9, 1999) (affirming

district court's dismissal of plaintiff's Eighth Amendment claim based on the

presence of a worm in her peanut butter); see also, Hamm v. DeKalb County, 774

F.2d 1567, 1575 (11th Cir. 1985); Miles v. Konvalenka, 791 F.Supp. 212 (N.D. Ill.

1992) (single instance of finding mouse in food not actionable). Wiley's claim about

his prison food on May 1, 2011, will be dismissed for failure to state a claim upon

which relief can be granted.

Wiley, 2012 WL 5878678, at *8 (E.D. Ky. 2012).; see also Clark v. Junck, No. 2:23-CV-119,

2023 WL 4861751, at *4 (W.D. Mich. July 31, 2023) (dismissing claim arising from one

instance of being served spoiled milk and citing similar cases); Gilmore v. Trinity Servs. Grp.,

Inc., No. 4:20CV136, 2020 WL 2043454, at *2 (N.D. Ohio Apr. 27, 2020) (isolated incident of

food poisoning does not characterize extreme deprivation necessary to make out an Eighth

Amendment conditions of confinement claim); Boone v. MacLaren, No. 2:16-CV-271, 2017 WL

3015771, at *4 (W.D. Mich. July 17, 2017) (confirming that Plaintiff becoming ill on one

occasion does not constitute a serious deprivation sufficient to violate the Eighth Amendment

and citing cases); Fox v. Mayfield Graves Co. Det. Ctr., No. 5:14-CV-P225-TBR, 2015 WL

1438447, at **2-3 (W.D. Ky. Mar. 27, 2015) (concluding that one instance of food poisoning

from maggot-infested food did not state a claim and citing similar cases). Courts from around

the country have reached the same conclusion. See, e.g., Davis v. Doe 1, No. 24-CV-00425-

SPM, 2024 WL 4678947, at *1 (S.D. Ill. Nov. 5, 2024) (dismissing claims alleging vomiting and

headaches from food containing bugs and citing cases reaching similar result); Wilson v. Byrd,

No. 15-00160-KD-N, 2016 WL 1573265, at *7 (S.D. Ala. Mar. 14, 2016) (finding plaintiff's

allegation that he became ill from tainted food served on one occasion, did not, alone, amount to

a constitutional deprivation); Bennett v. Misner, No. 02-1662-HA, 2004 WL 2091473, at *20 (D.

Or. Sept. 17, 2004) (discussing that isolated instances of food poisoning, temporary lapses in

sanitary food service, or service of meals contaminated with maggots have been found to be not

sufficiently serious to constitute an Eighth Amendment violation), aff'd, 180 Fed.Appx. 732 (9th

Cir. 2006).

As to the subjective element of Plaintiff’s claim, his bare assertion of these two ODRC

Defendants’ awareness that the food Plaintiff consumed had been removed from a trash can, is

not sufficient to satisfy this element. Plaintiff has not accompanied his conclusory allegation

with any facts suggesting that Defendants Sandridge and Sedlitz possessed a “sufficiently

culpable state of mind, rising above negligence or even gross negligence and being tantamount to

intent to punish.” Broyles v. Corr. Med. Servs., Inc., 478 F. App'x 971, 975 (6th Cir. 2012)

(citing Horn v. Madison Cnty. Fiscal Court, 22 F.3d 653, 660 (6th Cir.1994)). While admittedly,

Plaintiff’s Second Amended Complaint is entitled to a liberal construction, his allegation

contains no facts suggesting that that these Defendants consciously disregarded an excessive risk

of harm to Plaintiff. For example, Plaintiff does not even minimally allege facts suggesting that

these Defendants had specific awareness of any trash can contents that might present a serious

risk to Plaintiff. Indeed, Plaintiff’s unadorned allegation of knowledge merely “create[s]

speculation or suspicion of a legally cognizable cause of action.” Mitchell v. Lamarca, No. CV

23-10325, 2024 WL 4719084, at *6 (E.D. Mich. Sept. 20, 2024), report and recommendation

adopted, No. 23-10325, 2024 WL 4609572 (E.D. Mich. Oct. 28, 2024) (citing League of United

Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007); Twombly, 550 U.S. at 555).

This is insufficient as a matter of law to state a claim for relief. Id. At bottom, Plaintiff has not

alleged any facts even remotely suggesting that these Defendants acted with deliberate

indifference to a substantial risk of serious harm to Plaintiff.

For all of these reasons, it is RECOMMENDED that the Motions for Judgment on the

Pleadings be GRANTED as to Plaintiff’s Eighth Amendment conditions of confinement claim.

2. Eighth Amendment Medical Deliberate Indifference Claim

Plaintiff also broadly suggests that he was delayed or denied medical treatment for his

food poisoning symptoms in violation of the Eighth Amendment. Again, it is necessary to

examine the precise nature of the factual allegations Plaintiff offers in support of this claim.

First, Plaintiff explains that his symptoms started on November 27, 2021, when he experienced

an upset stomach, cramping pains, severe diarrhea, and vomiting. Initially, he avoided going to

medical because he did not want to be charged the $3.00 co-pay or be accused of “wasting”

medical staff’s time. (ECF No. 31 at ⁋ 38.) When he continued to experience these alleged

symptoms, he “sent in a paper Medical request form to be seen” and wrote “My stomach is upset

and I have been having pains for the past couple days.” (Id. at ⁋ 39.) “Medical” refused to see

him. (Id. at ⁋ 59.) On December 5, 2021, Plaintiff was “escorted to medical.” (Id. at ⁋ 70.)

When he arrived at medical, he received a “mush fake screening,” and he reported his symptoms

including “abnormal bowel movements, pain in his stomach, and vomiting twice” to Defendants

Sky Murray and Rachel Allen. (Id. at ⁋ 71.) These Defendants “refused to provide medication

or to recommend transport to an outside hospital to be checked by a doctor, regarding bacteria or

other infections.” (Id. at ⁋ 72.) Further, they did not comply with ODRC policy regarding cases

of suspected food poisoning and made jokes at Plaintiff’s expense. (Id. at ⁋⁋ 73, 74.) On

December 6, 2021, Plaintiff was escorted back to medical after demanding to be seen by a

doctor. (Id. at ⁋ 89.) Plaintiff was seen by either Defendant Dr. William Harlan or Defendant

Dr. Raymond Corbett, but they failed to diagnose him despite his description of his intestinal

issues. (Id. at ⁋ 90.) Instead, the doctor he saw “quarantined” him and kept him on “’Quarantine

Status’ until Thursday December 9, 2021.” (Id. at ⁋⁋ 90, 95.)

An official violates the Eighth Amendment where he or she acts with “deliberate

indifference to an inmate's serious medical needs.” Brawner v. Scott Cnty., Tennessee, 14 F.4th

585, 591 (6th Cir. 2021). For an inmate to show that prison officials violated the Eighth

Amendment by denying medical care, the inmate must show (1) that he or she was deprived of

an objectively serious medical need, and (2) that the defendant knew “of and disregard[ed] an

excessive risk to [his or her] health or safety.” Farmer, 511 U.S. 825, 837; Rhinehart v. Scutt,

894 F.3d 721, 737–38 (6th Cir. 2018).

To satisfy the first element, or the objective prong, a serious medical need must be more

than “mere discomfort or inconvenience.” Talal v. White, 403 F.3d 423, 426 (6th Cir. 2005)

(internal quotations omitted). Rather, “[t]he objective component requires the existence of a

sufficiently serious medical need.” Broyles, 478 F. App'x 971, 975. A serious medical need is

one that “has been diagnosed by a physician as mandating treatment or one that is so obvious

that even a lay person would easily recognize the necessity for a doctor's attention.” Blackmore

v. Kalamazoo Cty., 390 F.3d 890, 897 (6th Cir. 2004) (emphasis in original). An injury is

sufficiently serious to satisfy the objective component if a reasonable doctor or patient would

find it “important and worthy of comment or treatment”; if it “significantly affects an

individual's daily activities”; or if its existence causes “chronic and substantial pain.” Sarah v.

Thompson, 109 F. App'x 770, 771 (6th Cir. 2004) (internal citations omitted).

To satisfy the subjective prong, the plaintiff must show that the defendant possessed “a

‘sufficiently culpable state of mind,’ rising above negligence or even gross negligence and being

‘tantamount to intent to punish.’” Broyles, 478 F. App'x at 975 (quoting Horn v. Madison Cty.

Fiscal Ct., 22 F.3d 653, 660 (6th Cir. 1994)). Put another way, “[a] prison official acts with

deliberate indifference if he knows of a substantial risk to an inmate's health, yet recklessly

disregards the risk by failing to take reasonable measures to abate it. Mere negligence will not

suffice. Consequently, allegations of medical malpractice or negligent diagnosis and treatment

generally fail to state an Eighth Amendment claim of cruel and unusual punishment.” Broyles,

478 F. App'x at 975 (internal citations and quotations omitted).

Additionally, a plaintiff must demonstrate that the defendant knew of and disregarded an

excessive risk to inmate health or safety by showing that (1) he was aware of facts from which an

inference could be drawn that a substantial risk of serious harm existed, and (2) he actually drew

the inference. Farmer, 511 U.S. 825, 837. The requirement that the defendant subjectively

perceived a risk of harm and then disregarded it is “meant to prevent the constitutionalization of

medical malpractice claims; thus, a plaintiff alleging deliberate indifference must show more

than negligence or the misdiagnosis of an ailment.” Comstock v. McCrary, 273 F.3d 693, 703

(6th Cir. 2001).

As alleged here, any medical deliberate indifference claim Plaintiff is attempting to assert

fails to meet either prong. First, as Plaintiff has described them, his alleged gastrointestinal

issues do not constitute a serious medical need. Indeed, Plaintiff initially did not consider them

serious enough to warrant treatment. To be sure, he attempts to explain his decision to delay

seeking treatment by noting the cost of the co-pay or a fear of being accused of “wasting”

medical staff’s time. (ECF No. 31 at ⁋ 38.) These concerns, however, just further underscore the

lack of a serious medical need.

“[C]ourts also are reluctant to find that occasional gastrointestinal symptoms alone may

constitute a sufficiently serious medical need.” Rains v. Wellman, No. 2:20-CV-32, 2022 WL

18587783, at *7 (W.D. Mich. Dec. 30, 2022), report and recommendation adopted, No. 2:20-

CV-32, 2023 WL 543075 (W.D. Mich. Jan. 27, 2023) (citing Sledge v. Kooi, 564 F.3d 105, 108

(2d Cir. 2009) (finding that the plaintiff failed to produce sufficient evidence that his alleged

stomach disorders constituted serious medical needs); Smith v. Hepp, No. 18-CV-669-JDP, 2022

WL 1001183 (W.D. Wis. Apr. 4, 2022) (“Stomach distress often is not serious enough to support

an Eighth Amendment claim” (citing Riley El v. Godinez, No. 13-c-5768, 2016 WL 4505038, at

*11 (N.D. Ill. Aug. 29, 2016))). Here, although Plaintiff’s allegations suggest that his

gastrointestinal symptoms continued for a few days, he does not allege a deterioration of his

condition or any complications arising from his alleged symptoms. Accordingly, the Court is not

convinced that such an experience of gastrointestinal symptoms under the circumstances

presented elevates those symptoms to the level of a serious medical need. Id.

Also, to the extent Plaintiff may be claiming delay in his receipt of medical care, he does

not identify any specific Defendant who delayed his treatment after he made his request to be

seen by medical. Rather, he merely states that “[m]edical refused to see [him].” (ECF No. 31 at

⁋ 59.) To the extent Plaintiff suggests that certain Defendants had some obligation to seek

medical attention on his behalf and that they failed in this regard, the Court views these

allegations as directed to the issue of deliberate indifference.

And, to be clear, Plaintiff alleges that he was seen by medical staff. Thus, based on his

description of events, Plaintiff’s claim is more properly characterized as a disagreement as to

whether his condition required treatment and the timing of that treatment. That is, Plaintiff

believes he should have been seen earlier and that he should have been provided medication or

“transport[ed] to an outside hospital to be checked by a doctor, regarding bacteria or other

infections.” (ECF No. 31 at ⁋ 72.) Disagreement about the course of treatment does not

support a proper claim under § 1983. Estelle, 429 U.S. at 107; Westlake v. Lucas, 537 F.2d 857,

860 n.5 (6th Cir. 1976) (“Where 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 which sound in state tort law.”). Negligence or

medical malpractice does not amount to a constitutional violation. See Farmer, 511 U.S. at 835-

36; Estelle, 429 U.S. at 106. Thus, any disagreement Plaintiff had regarding medical staff’s

decision to place him in quarantine following his report of his gastrointestinal symptoms is

insufficient to state a § 1983 claim.

As to the subjective element, Plaintiff wholly fails to establish this element. As with his

conditions of confinement claim, Plaintiff’s conclusory allegations of deliberate indifference are

unaccompanied by any facts suggesting that any ODRC Defendants possessed a “sufficiently

culpable state of mind, rising above negligence or even gross negligence and being tantamount to

intent to punish.” Broyles, 478 F. App'x 971, 975. To the extent that Plaintiff claims that

medical staff made jokes at his expense, Plaintiff does not provide any facts suggesting a

culpable state of mind. Moreover, disparaging statements do not rise to the level of a

constitutional violation. Washington v. Miami Cnty., No. 3:20-CV-173, 2022 WL 17326436, at

*15 (S.D. Ohio Nov. 29, 2022).

Additionally, as to Plaintiff’s claims against Drs. Harlan and Corbett, these claims fail for

the additional reason that Plaintiff has not identified which of these Defendants allegedly denied

him adequate medical care. It is a basic pleading essential that a plaintiff attribute factual

allegations to particular defendants. Chappell v. Unknown Party #1, No. 1:24-CV-358, 2024

WL 2075804, at *3 (W.D. Mich. May 7, 2024) (citing Twombly, 550 U.S. at 544)).

For all of these reasons, it is RECOMMENDED that the Motions for Judgment on the

Pleadings be GRANTED as to Plaintiff’s Eighth Amendment medical deliberate indifference

claim.

3. Allegations of HIPAA violations or failure to follow ODRC Policies

Plaintiff also alleges that certain Defendants, including “’Health-Care Administrator’

Meredyth McLaughlin” released his protected health information without his consent. (ECF No.

31 at ⁋ 62.) Title II of HIPAA, the Health Insurance Portability and Accountability Act of 1996,

codified at 42 U.S.C. § 1320a et seq., was created to protect against the unauthorized disclosure

of health records and information. Stokley v. Dismas Charities, Inc., No. 3:14CV-P30-S, 2014

WL 3721423, at *6–7 (W.D. Ky. July 28, 2014) (citing Gratton v. United Parcel Serv., Inc., No.

CV 07–3071, 2008 WL 4934056 (E.D.N.Y. Nov.14, 2008)). However, only the Secretary of the

Department of Health and Human Services may file suit to enforce its provisions. Id. (citing 42

U.S.C. § 1320d–5(d); Sneed v. Pan Am. Hosp., 370 F. App'x 47, 50 (11th Cir.2010)). Private

citizens have no standing to sue a covered entity for a violation of HIPAA. Id. (citing Adams v.

Eureka Fire Prot. Dist., 352 F. App'x 137, 139 (8th Cir.2009) (holding that HIPAA cannot be

enforced through either an implied private right of action or through § 1983); Carpenter v.

Phillips, 419 F. App'x 658, 658 (7th Cir.2011); Siegler v. Ohio State Univ., No. 2:11–cv–170,

2011 WL 1990570 (S.D. Ohio May 23, 2011)).

To the extent that Plaintiff may be suggesting a Fourteenth Amendment violation arising

from the alleged disclosure his medical information, the Sixth Circuit narrowly applies the right

to informational privacy “only to interests that implicate a fundamental liberty interest.” Stokley,

2014 WL 3721423, at *6–7 (citing Bloch v. Ribar, 156 F.3d 673, 684 (6th Cir.1998)). Under this

standard, the disclosure of a plaintiff's medical information concerning the symptoms of his food

poisoning was found insufficient to state a Fourteenth Amendment claim. Id. (citing See Lee v.

City of Columbus, 636 F.3d 245, 261 (6th Cir. 2011) (“[U]nder our interpretation of privacy

rights, we have not yet confronted circumstances involving the disclosure of medical records

that, in our view, are tantamount to the breach of a ‘fundamental liberty interest’ under the

Constitution.”)). That conclusion applies here as well.

Plaintiff also claims that various Defendants failed to follow ODRC policy, including

regarding testing for food poisoning. “Failure to follow ODRC policy is “’not in and of itself a

constitutional violation.’” Stone v. Ohio Parole Bd., No. 2:21-CV-884, 2023 WL 155903, at *7

(S.D. Ohio Jan. 11, 2023), report and recommendation adopted, No. 2:21-CV-884, 2023 WL

2018897 (S.D. Ohio Feb. 15, 2023) (quoting McDougald v. Davis, No. 2:16-CV-545, 2018 WL

1899229, at *7 (S.D. Ohio Apr. 20, 2018)). “Section 1983 does not provide a remedy for

alleged violations of state laws or regulations.” Id. (citing Williams v. Burgess, No. 5:21-cv-99,

2021 WL 5816830, at *4 (W.D. Ky. Dec. 7, 2021)). “And, ‘[c]ourts routinely have recognized

that a prisoner does not enjoy any federally protected liberty or property interest in state

procedure.’” Id. (quoting White v. Perron, No. 2:20-cv-247, 2021 WL 3855589, at *9 (W.D.

Mich. Aug. 30, 2021)). “Thus, the “failure to comply with [a state] administrative rule or policy

does not itself rise to the level of a constitutional violation.’” Id. (quoting Williams v. Burke, No.

2:08-cv-123, 2009 WL 1788374, at *1 (W.D. Mich. June 18, 2009) (collecting cases)).

Accordingly, it is RECOMMENDED that the ODRC Defendants’ Motions be GRANTED as

to Plaintiff’s claims alleging violations of HIPAA and ODRC policy.

4. First Amendment Retaliation Claim

Plaintiff also broadly alleges retaliation. According to Plaintiff, this retaliation “consisted of

locking the inmates down, not answering their questions, not allowing them to have recreation,

when recreation was given it consisted of Plaintiff being allowed out of his cell for a 15 min

window to get on the restricted Kiosk or to shower. Most of the time mail was with-held, or not

picked up to prevent it from being sent out by the staff.” (ECF No. 31 at ⁋ 114.) Earlier in his

pleading, he alleges that, while he was “locked down ‘quarantined’” he was “restricted from

generating new Informal Complaint Resolutions ‘ICR’s’ or Grievances against ODRC of

Medical’s staff.” (Id. at ⁋ 82.) Later in his pleading, he alleges without any specificity that he

was “prevented” from filing grievances against health services, Aramark, and some of the

Defendants named here. (Id. at ⁋ 132.)

Retaliation based upon a prisoner's exercise of his or her constitutional rights violates the

Constitution. See Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc). To set

forth a First Amendment retaliation claim, a plaintiff must establish three elements: (1) he was

engaged in protected conduct; (2) an adverse action was taken against him that would deter a

person of ordinary firmness from engaging in that conduct; and (3) the adverse action was

motivated, at least in part, by the protected conduct. Id. Moreover, a plaintiff must be able to

prove that the exercise of the protected right was a substantial or motivating factor in the

defendant's alleged retaliatory conduct. See Smith v. Campbell, 250 F.3d 1032, 1037 (6th Cir.

2001) (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

Even reading the Second Amended Complaint generously, Plaintiff’s allegations as to

any claim of retaliation are non-specific and conclusory. “[C]onclusory allegations of retaliatory

motive ‘unsupported by material facts will not be sufficient to state ... a claim under § 1983.’”

Thomas v. Michigan Dep't of Corr., No. 2:23-CV-191, 2024 WL 1046350, at *7 (W.D. Mich.

Mar. 11, 2024) (citations and quotations omitted). Many of Plaintiff’s numerous allegations

simply do nothing more than assert the ultimate fact of retaliation, and frequently assert that

ultimate fact against unspecified ODRC employees.

This obvious shortcoming aside, Plaintiff’s claim of retaliation, when scrutinized, also is

wholly contradicted by other allegations in his Second Amended Complaint. Such contradiction

seriously undercuts the plausibility of such a claim. That is, while Plaintiff alleges that he was

placed in lockdown as a form of retaliation, elsewhere in his pleading, he states that either Dr.

Corbett or Dr. Harlan placed him in quarantine. This would be a reasonable response to

Plaintiff’s report of continued gastrointestinal symptoms. (ECF No. 31 at ⁋⁋ 90, 95.) Indeed,

according to Plaintiff, the Health Care Administrator’s review of his medical file reflected an

assessment “for influenza like illness.” (Id. at ⁋ 97.) Further, although Plaintiff states that while

he was in quarantine he was not permitted to use the J-pay system to generate new informal

complaints or grievances, he also alleges that, after he realized he was restricted from the Kiosk,

he filed an informal complaint resolution against medical in paper form. (Id. at ⁋ 116.)

Finally, although Plaintiff alleges his transfer to CCI, he does not identify this transfer as

a form of retaliation. Importantly, Plaintiff does not have a constitutional right to be housed in a

certain facility. Dziczkowski v. Anderson Cnty. Det. Facility, No. 3:23-CV-141-TAV-JEM, 2023

WL 3739069, at *2 (E.D. Tenn. May 31, 2023) (citing LaFountain v. Harry, 716 F.3d 944, 948

(6th Cir. 2013) (noting that, absent unusual circumstances, prison officials, rather than judges,

should decide where a particular prisoner should be housed)). Accordingly, under the

circumstances here, the Court does not view Plaintiff as attempting to state any constitutional

claim arising from this transfer to CCI.

For these reasons, it is RECOMMENDED that Defendants’ Motions be GRANTED as

to any retaliation claim.

5. Failure to Train

Under the heading “CLAIM TWO Failed to Train,” (ECF No. 31 at ⁋ 146), Plaintiff

states the following:

The Supervisory Defendant’s in paragraphs 30 through 144 as if fully rewritten

herein have actively engaged in official duties, through the official’s own individual

actions, have violated the Constitution; the supervisors have abdicated their specific

job responsibility, with the ‘active performance of the supervisor’s individual job

function, directly resulting in the constitutional injury. To wit: Implicitly

authorized, approved, or knowingly acquiesced” to the underlying constitutional

violation, or knowingly acquiesced in the unconstitutional conduct of the offending

subordinate against the Plaintiff.

To the extent Plaintiff is attempting to hold any supervisor liable in an individual capacity

for the “alleged failure to adequately train employees ... [he] ‘improperly conflates a § 1983

claim of individual supervisory liability with one of municipal liability.’” Poynter v. Whitley

Cnty. Det. Ctr., 722 F. Supp. 3d 745, 756 (E.D. Ky. 2024) (citing Harvey v. Campbell Cty., 453

F. App'x 557, 563 (6th Cir. 2011)). “Thus, absent personal involvement, a failure-to-train claim

against an individual official is properly deemed to be brought against them in their official

capacity and treated as a claim against the municipality.” Id. (citing Miller v. Calhoun Cty., 408

F.3d 803, 817 n.3 (6th Cir. 2005)). Here, the named Defendants are ODRC employees. ODRC

is an arm of the State of Ohio. Accordingly, any theory of municipal liability, including failure

to train or supervise, has no application. Scott v. Michigan, 173 F. Supp. 2d 708, 714 (E.D.

Mich. 2001). And, as stated above, claims against the State of Ohio are barred by the Eleventh

Amendment.

To the extent that Plaintiff is attempting to state a supervisory liability claim, any such

claim also fails. “[T]o succeed on a supervisory liability claim, [a plaintiff] must show that ‘a

supervisory official at least implicitly authorized, approved or knowingly acquiesced in the

unconstitutional conduct of the offending subordinate.’” Garza v. Lansing Sch. Dist., 972 F.3d

853, 865 (6th Cir. 2020) (quoting Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984)). This

“requires some ‘active unconstitutional behavior’ on the part of the supervisor.” Peatross v. City

of Memphis, 818 F.3d 233, 241 (6th Cir. 2016) (quoting Bass v. Robinson, 167 F.3d 1041, 1048

(6th Cir. 1999)). In short, a plaintiff must plausibly allege that a supervisory defendant

“authorized, approved, or knowingly acquiesced in the unconstitutional conduct ... of his

subordinates through the execution of his job functions.” Id. at 242. This requires allegations of

active involvement and a “causal connection.” Crawford v. Tilley, 15 F.4th 752, 761–62 (6th

Cir. 2021). Plaintiff’s allegations here are limited to only a formulaic recitation of the elements

of any such cause of action. As such, they fail to plausibly suggest active involvement by any

supervisory official or any causal connection. Accordingly, the Court disregards these

allegations. For these reasons, it is RECOMMENDED that the ODRC Defendants’ Motions for

Judgment on the Pleadings be GRANTED as to any failure to train claim.

6. Equal Protection Claim

Plaintiff suggests that he was denied equal protection when he was harassed and

retaliated against apparently for filing previous unidentified grievances. (ECF No. 31 at ⁋ 131.)

“The Equal Protection Clause of the Fourteenth Amendment provides that a state may not ‘deny

to any person within its jurisdiction the equal protection of the laws,’ which is essentially a

direction that all persons similarly situated should be treated alike.” Bradford v. Linscott, No.

1:23-CV-48, 2024 WL 3593640, at *14 (W.D. Mich. July 31, 2024) (quoting U.S. Const.,

amend. XIV; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). “To state an

equal protection claim, Plaintiff must show ‘intentional and arbitrary discrimination’ by the state;

that is, he must show that he ‘has been intentionally treated differently from others similarly

situated and that there is no rational basis for the difference in treatment.’” Id. (quoting Village

of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).

“The threshold element of an equal protection claim is disparate treatment.” Bradford,

2024 WL 3593640, at *14 (citing Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260

(6th Cir. 2006)). Further, “‘[s]imilarly situated’ is a term of art—a comparator ... must be similar

in ‘all relevant respects.’” Id. (quoting Paterek v. Vill. of Armada, 801 F.3d 630, 650 (6th Cir.

2015)). Conclusory allegations of unconstitutional conduct without specific factual allegations

fail to state a claim under § 1983. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

Plaintiff’s allegation of an equal protection violation is wholly conclusory. As to this claim,

Plaintiff alleges, in its entirety:

The Defendant’s in paragraphs 30 through 144 as if fully rewritten herein each

violated Plaintiff’s equal protection rights guaranteed by the Fourteenth

Amendment of the United States Constitution, when they intentionally targeted and

discriminated against him treating him differently than others similarly situated

without any rational basis for the difference.

(ECF No. 31 at ⁋ 150.) This is nothing more than a formulaic recitation of the elements of a cause

of action. As such, the Court disregards these allegations. Accordingly, it is RECOMMENDED

that the Motions for Judgement on the Pleadings filed by the ODRC Defendants be GRANTED

as to Plaintiff’s equal protection claim.

7. Additional Issues

Plaintiff’s Second Amended Complaint is riddled with other allegations that the Court

finds fail to state a claim. For example, Plaintiff accuses certain ODRC Defendants, including

Ms. Kearns, of inaction in response to his complaints or grievances. (See, e.g., ECF No. 31 at ⁋⁋

85, 87.) Plaintiff also asserts a failure to respond to his demands for information about the

Aramark employee made through informal complaints. (Id. at ⁋⁋ 101, 102.) However, § 1983

liability may not be imposed simply because a defendant denied an administrative grievance or

failed to act based upon information contained in a grievance. Waller v. Richardson, No. 1:23-

CV-1224, 2024 WL 4143028, at *7 (W.D. Mich. Sept. 11, 2024) (citing Shehee v. Luttrell, 199

F.3d 295, 300 (6th Cir. 1999)).

Plaintiff also alleges threats and the use of degrading language by Defendant Williams

and Tatman. (ECF No. 31 at ⁋⁋ 65-67, 109, 110.) The use of harassing or degrading language

by a prison official, although unprofessional and deplorable, does not rise to constitutional

dimensions. Ivey v. Wilson, 832 F.2d 950, 954–55 (6th Cir. 1987). The same holds true as to

Plaintiff’s allegations that Defendant Mitchell-Jackson yelled at Plaintiff and others when they

tried to speak with her. (Id. at ⁋⁋ 91-92.)

Finally, Plaintiff asserts that he was denied permission for a “legal box” when he was

packing for his transfer to CCI. (ECF No. 31 at ⁋⁋ 107-112.) He also asserts that this issue was

resolved. (Id. at ⁋ 112.) Given the apparent resolution and Plaintiff’s failure to include any

additional allegations that he was unable to pursue any legal claim as a result, the Court does not

view these allegations as raising an access to the courts claim.

8. Dismissal of Plaintiff’s Claims Against Remaining Defendants under 42 U.S.C. §

1997e(c)(1) and 28 U.S.C. § 1915(e)(2)(B)

In light of the issues raised by the dispositive briefing, the Court finds it prudent to

undertake a further sua sponte review of Plaintiff's Second Amended Complaint with respect to

the remaining Defendants. Although this action survived the initial screen pursuant to 42 U.S.C.

§ 1915(e) and § 1915A, “the Court has ‘inherent power to reconsider interlocutory orders

and reopen any part of a case before entry of a final judgment.’” Bloodworth v.

Timmerman-Cooper, No. 2:10-CV-1122, 2012 WL 604236, at *2 (S.D. Ohio Feb. 23, 2012),

report and recommendation adopted, No. 2:10-CV-1122, 2012 WL 3727656 (S.D. Ohio Aug.

28, 2012) (quoting Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)) (emphasis added).

Moreover, Section § 1915(e) grants courts authority to dismiss a case at any time if it is frivolous

or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2)(B); Norman v.

Granson, No. 18-4232, 2020 WL 3240900, at *2 (6th Cir. Mar. 25, 2020) (emphasis added); see

also Yoder v. Stevenson, No. CV 20-12992, 2021 WL 6973839, at *7 (E.D. Mich. Dec. 20,

2021), report and recommendation adopted, No. 20-12992, 2022 WL 493284 (E.D. Mich. Feb.

16, 2022) (sua sponte dismissing claims not addressed by dispositive motion). Accordingly, the

Court reconsiders the initial review and RECOMMENDS that the Second Amended Complaint

be DISMISSED pursuant to 28 U.S.C. 1915(e) and 1915A, for the same reasons stated above, as

to all remaining ODRC Defendants.

As to Aramark the corporate entity, such an entity that contracts to provide services at a

jail can be held liable under § 1983 because it is carrying out a traditional state function. Winkler

v. Madison Cnty., 893 F.3d 877, 904 (6th Cir. 2018) (citing Johnson v. Karnes, 398 F.3d 868,

877 (6th Cir. 2005)). However, “like a municipality, a government contractor cannot be held

liable on a respondeat superior theory,” but rather “for a policy or custom of that private

contractor.” Id. (emphasis in original). Thus, to the extent Plaintiff’s allegations are an attempt

to hold Aramark liable under a respondeat superior theory, they fail to state a claim.

Plaintiff’s Second Amended Complaint appears to go further by alleging that Aramark

has “well settled policies and customs [] which aide in the causation, and deprivation of

Plaintiff’s Federal Constitutional Rights as they were the ‘moving force’ behind the alleged

deprivation.” (ECF No. 31 at ⁋ 142.) Nevertheless, Plaintiff’s attempt to hold Aramark liable

fall short.

First, Plaintiff “’needs to allege facts that point towards a policy or custom that forms the

basis of his claim.’” Dillon v. Hamlin, 718 F. Supp. 3d 733, 740 (S.D. Ohio 2024) (quoting

Ghaster v. City of Rocky River, No. 1:09-cv-2080, 2010 WL 2802682, at *7 (N.D. Ohio July 13,

2010)). Plaintiff’s Second Amended Complaint cites no specific, official Aramark policy that

Plaintiff says led to his injuries. As cited above, Plaintiff only makes vague reference to “well-

settled policies.” The Court, however, may disregard “formulaic recitations of the elements of a

cause of action.” Id. (citing Iqbal, 556 U.S. at 678).

Moreover, to show a custom of activity, there must be several instances of similar

conduct. See Leach v. Sheriff of Shelby County, 891 F.2d 1241, 1248 (6th Cir. 1989) (finding

municipality was deliberately indifferent to prisoners’ medical needs where 14 paraplegics

received “deplorable” treatment). Here, Plaintiff cites a law review article discussing bad prison

food provided by contractors such as Aramark. Plaintiff highlights one reported example where

an Aramark employee “fed prisoners actual trash.” (ECF No. 31 at ⁋ 139.) In Plaintiff’s view,

this incident, along with his alleged experience, demonstrates Aramark’s “MODUS

OPERANDI.” (Id. at ⁋ 140.) But listing two events is not enough to establish a custom.

Cunningham v. Shelby Cnty., Tennessee, 715 F. Supp. 3d 1058, 1066 (W.D. Tenn. 2024), aff'd,

No. 24-5241, 2024 WL 4825338 (6th Cir. Nov. 19, 2024); see also Wallace v. Coffee Cnty.,

Tennessee, 852 F. App'x 871, 876 (6th Cir. 2021) (“six incidents ... is not sufficient to suggest a

widespread, permanent custom”); Jones v. Muskegon Cnty, 625 F.3d 935, 946 (6th Cir. 2010) (“a

jury could not reasonably infer from these five incidents alone that the County had a widespread,

permanent and well-settled custom of ignoring inmate requests”); and McGee v. Madison Cnty.,

Tennessee, 2017 WL 6804233, at *9 (W.D. Tenn. Oct. 31, 2017) (holding that four instances was

not enough to establish a policy or custom).

Plaintiff also cites dissimilar incidents allegedly involving Aramark. (ECF No. 31 at ⁋⁋

138, 141.) These examples also are not sufficient to allow the Court to draw the reasonable

inference that Aramark maintained a custom or practice of allowing employees to serve food

removed from a trash can or that Aramark had knowledge of its employee’s alleged misconduct

here. Plaintiff’s allegations are too vague to support a plausible inference that Aramark

maintains any widespread practice that caused his injury. At most, Plaintiff has alleged random,

sporadic, isolated acts by non-policy making Aramark employees. Such allegations do not

demonstrate a custom or policy sufficient to justify liability. Accordingly, it is

RECOMMENDED that Plaintiff’s claims against Aramark be DISMISSED for failure to state

a claim.

Finally, as to Ms. Woods, Plaintiff claims that she was the Aramark employee

responsible for serving the food removed from the trash can. Accordingly, Plaintiff’s allegations

against this Defendant are limited to his conditions of confinement claim. Even accepting as true

Plaintiff’s allegation thar Ms. Woods, on one occasion, knowingly served food removed from a

trash can, this claim fails for the same reasons discussed above. In short, Plaintiff fails to set

forth factual allegations suggesting that Ms. Woods’ isolated action was undertaken with the

requisite knowledge of and disregard for an excessive risk to inmate health or safety. Farmer,

511 U.S. at 837. That is, Plaintiff has not set included sufficient factual matter to render any

Eighth Amendment claim against Ms. Woods plausible, i.e., more than merely possible. Fritz v.

Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). Accordingly, it is

RECOMMENDED that Plaintiff’s claims against Ms. Woods be DISMISSED for failure to

state a claim.

9. State Law Claims

Given that no federal claims remain, Plaintiff's state law claims should be DISMISSED as

well. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental

jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has

original jurisdiction[.]”); Harper v. AutoAlliance Intern., Inc., 392 F.3d 195, 210 (6th Cir. 2004)

(“Generally, if the federal claims are dismissed before trial, the state law claims should be

dismissed as well.”).

IV. CONCLUSION

For the reasons stated above, it is RECOMMENDED that Defendant Tim Barttrum’s

Motion to Dismiss (ECF No. 90) be GRANTED. Further, it is RECOMMENDED that the

Motions for Judgment on the Pleadings (ECF Nos. 43, 83) be GRANTED. Further, it is

RECOMMENDED that Plaintiff’s claims against any remaining Defendants be DISMISSED

for failure to state a claim pursuant to 42 U.S.C. § 1997e(c)(1) and 28 U.S.C. § 1915(e)(2)(B).

Finally, it is RECOMMENDED the Court decline to exercise supplemental jurisdiction over

any remaining state law claims against the Defendants. Accordingly, Plaintiff’s request to issue

service (ECF No. 100) is DENIED.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a forfeiture of the right to de novo review of by the District Judge

and forfeiture of the right to appeal the judgment of the District Court. Even when timely

objections are filed, appellate review of issues not raised in those objections is forfeited. Robert

v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s

report, which fails to specify the issues of contention, does not suffice to preserve an issue for

appeal . . . .” (citation omitted)).

/s/ Elizabeth A. Preston Deavers______

DATED: January 13, 2025 ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE