Mills v. Aramark Correctional Services

Filing 32

REPORT AND RECOMMENDATIONS re #27 MOTION for Judgment on the Pleadings filed by Aramark Corporation, #28 MOTION for Summary Judgment filed by Aramark Corporation. IT IS RECOMMENDED THAT Defendant's pending motions for judgment on the pleadings and for summary judgment #27 #28 be GRANTED, with all claims to be dismissed against Defendant Aramark. IT IS FURTHER RECOMMENDED that Plaintiff's case be DISMISSED IN ITS ENTIRETY WITH PREJUDICE for failure to prosecute, and that this case be CLOSED. Objections to R&R due by 9/29/2017. Signed by Magistrate Judge Stephanie K. Bowman on 9/15/2017. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DERRICK MILLS,
Plaintiff,

Case No. 1:15-cv-610

v.

Black, J.
Bowman, M.J.

ARAMARCK CORP., et al.,
Defendants.

REPORT AND RECOMMENDATION
Pursuant to local practice, this prisoner civil rights case has been referred to the
undersigned magistrate judge. See 28 U.S.C. § 636(b). For the reasons that follow, I
now recommend that judgment be entered in favor of Defendants, and that this case be
closed.
I. Background
On August 21, 2015, Plaintiff Derrick Mills, currently incarcerated at the Warren
Correctional Institution, filed a Complaint in Warren County Court of Common Pleas,
Case No. 15CV87635, alleging a claim of assault by an “Aramark Employee Holt” on
June 28, 2015, as well as claims against “Aramark Corporation” for failure to properly
train and/or supervise its employee. The one-page complaint offers little detail, but
alleges that Defendant Holt “willfully and maliciously attacked and physically assaulted
Plaintiff in the food service area porter closet of the Warren Correctional Institution,” and
that the physical assault “caused Plaintiff great pain of mind and body, and particularly
to Plaintiff’s back area that continues to experience pain after the attack.” (Doc. 3).
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On September 21, 2015, Defendant Aramark Correctional Services, LLC1
removed the action to the United States District Court for the Southern District of Ohio.
Based on the affidavit of indigency filed by Plaintiff in state court and provided by the
Defendants at the time of removal, it appeared that Plaintiff had been granted leave to
proceed in forma pauperis at the time of filing his action in state court and that the
Warren County Clerk of Courts initiated service of process on Plaintiff’s behalf. Based
on that fact, this Court conducted a sua sponte review of Plaintiff’s Complaint in
accordance with 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and permitted Plaintiff to
proceed in this Court to the extent that (1) the Court has diversity jurisdiction to consider
plaintiffs state-law tort claims against the Defendants; and (2) the Court has federal
question jurisdiction to consider a claim under 42 U.S.C. § 1983 against the former
Aramark employee stemming from an attack that allegedly occurred at Warren
Correctional Institution on June 28, 2015 (Doc. 10). However, the Court found that the
state court service of process as to Defendant “Aramark Employee Holt” was deficient,
as the Defendant’s actual identity was unknown at the time service was issued.
The state court service of process was quashed and this Court ordered
Defendant Aramark Corporation to provide to Plaintiff within sixty (60) days, any
information in its possession regarding the identity of the former Aramark employee
allegedly involved in the incident. Defendant Aramark Corporation moved to release
this personal information directly to the Court, in order to maintain security and privacy
concerns of the unnamed Defendant (Doc. 13). On February 22, 2016, the Court

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Although the docket sheet continues to reflect Plaintiff’s designation of the Defendant as “Aramark
Corporation,” the Defendant Aramark has corrected its name in its answer to the complaint as “Aramark
Correctional Services, LLC” of Philadelphia, Pennsylvania. (Doc. 4; see also Doc. 10 at n.1).

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granted Defendant’s motion and directed Defendant Aramark Corporation to directly
submit this information to the Court for in camera review (Doc. 14).
The information provided by Aramark identified the intended individual as
Defendant John Holt, a former employee who was terminated by Aramark as a result of
the conduct that gave rise to this lawsuit. Although the Court attempted to serve John
Holt on Plaintiff’s behalf at the address provided by his former employer, the summons
was initially returned unexecuted and marked “Return to Sender, no such street.” (Doc.
20, address under seal). Noting a discrepancy in the address provided by Aramark and
the address on the unexecuted summons, the undersigned ordered the Clerk of Court
to reissue the summons with a corrected zip code, and to re-transmit the same to the
U.S. Marshal for service. However, reissuance of service to the corrected address by
certified mail was returned as “unclaimed” by the U.S. Postal Service.

(Doc. 23).

Thereafter, on June 30, 2016, the Court made a final attempt to serve Defendant John
Holt by ordinary mail, pursuant to Local Rule 4.2(c).

Service by ordinary mail was not

returned as undeliverable, giving rise to a presumption that Defendant John Holt was
properly served. Because service would have occurred not later than early July 2016,
any response or answer by Defendant Holt is long overdue. However, the individual
Defendant Holt has never entered an appearance in this litigation.
Notwithstanding the failure of Defendant Holt to enter any appearance, the
undersigned entered a calendar order directing the parties to complete all discovery by
March 1, 2017, with any dispositive motions to be filed by May 1, 2017. (Doc. 26). On
May 1, 2017, Defendant Aramark filed two separate dispositive motions, including a
motion for judgment on the pleadings pursuant to Rule 12(c), and a second motion for
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summary judgment under Rule 56. Defendant’s motion for summary judgment reflects
that Plaintiff has undertaken no discovery in this case whatsoever.
In addition to serving Plaintiff with a copy of the motions, Defendant served
Plaintiff with a “Notice” of his obligation to timely respond. (Doc. 30).

After Plaintiff

failed to file any timely response, the undersigned ordered Plaintiff
TO SHOW CAUSE, in writing on or before June 20, 2017, why the
Defendant Aramark Correctional Service’s dispositive motions (docs. 27,
28) should not be construed as unopposed and granted for the reasons
stated. Failure to timely comply with this Order will result in a Report and
Recommendation to the District Judge that the pending motions be
granted. The Clerk of Court is hereby DIRECTED to serve a copy of this
Order upon Plaintiff at his address of record, as well as a courtesy copy to
Madison Correctional Institution, Plaintiff’s current address as reflected by
the records of the Ohio Department of Rehabilitation and Corrections.
(Doc. 31 at 1-2). Plaintiff did not respond to the Order directing him to show cause why
the Defendant’s motions should not be granted. The undersigned now recommends
that judgment be granted in favor of both Defendants, and that this case be dismissed
with prejudice and closed.
II. Analysis
As stated above, the complaint is bare-bones, alleging that an individual
identified with the surname “Holt” and employed by Defendant Aramark, physically
assaulted Plaintiff on June 28, 2015 in the food service “porter closet.”

Plaintiff’s

allegation against Defendant Aramark is limited to a single statement accusing Aramark
of “failure to properly train and/or properly supervise Defendant Aramark Employee Holt
(HOLT)…thus establishing both direct and vicarious liability on the part of both named
Defendants.” (Doc. 3).

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A. Aramark’s Pending Motion for Judgment on the Pleadings
Defendant Aramark persuasively argues under Rule 12(c) of the Federal Rules of
Civil Procedure that Plaintiff has failed to put forth sufficient facts in his complaint to
state a plausible, cognizable claim as it relates to either his request for injunctive relief
or his prayer for punitive damages against Aramark. Plaintiff’s single allegation against
Aramark – that Aramark failed to properly train and/or supervise Defendant Holt – is so
devoid of any factual detail that arguably, the undersigned could have dismissed the
allegation outright under 28 U.S.C. § 1915(e).

To the extent that the claim was

permitted to proceed as setting forth a “plausible” failure to train or supervise claim
against Aramark, the only claim that is “plausible” is one for compensatory damages, as
it is abundantly clear there are no allegations that would give rise to claims for injunctive
relief or punitive damages.
B. Aramark’s Pending Motion for Summary Judgment
Despite the failure of Plaintiff himself to conduct any discovery in this case,
Defendant Aramark has filed a motion for summary judgment that is fully supported by
appropriate evidentiary exhibits, which evidence has not been rebutted. The standard
of review for Defendant’s motion for summary judgment differs from the Court’s review
of the Defendant’s Rule 12(c) motion, which is limited to review of the complaint itself.
Unlike that more limited review, Federal Rule of Civil Procedure 56(a) provides that
summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” A dispute
is “genuine” when “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
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court must view the evidence and draw all reasonable inferences in favor of the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).

As the moving party, Aramark has the burden of showing an absence of

evidence to support the Plaintiff’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986).
Once a moving party has met its burden of production, the non-moving party
cannot rest on his pleadings, but must present significant probative evidence in support
of his complaint to defeat the motion for summary judgment.
Lobby, Inc., 477 U.S. at 248-49.

Anderson v. Liberty

The mere existence of a scintilla of evidence to

support the non-moving party’s position will be insufficient; the evidence must be
sufficient for a jury to reasonably find in favor of the nonmoving party. Id. at 252.
Aramark has clearly met its burden of production, and has conclusively proven
that no genuine issue of material fact exists on Plaintiff’s claims against it, and that it is
entitled to judgment as a matter of law. Considering Plaintiff has failed to respond at all
to the Defendant’s well-supported motion, and after review of all of the exhibits attached
to Aramark’s motion, the undersigned recommends that judgment be granted in
Aramark’s favor. Aramark persuasively argues that it cannot be held liable under a
theory of respondeat superior for any intentional tort committed by its former employee,
John Holt, whom it fired shortly after learning of the incident that forms the basis for this
lawsuit. As Defendant explains, “Holt’s actions were not authorized by Aramark, Holt’s
actions were not part of a purpose to serve Aramark, and Holt’s actions were not what
he was hired to do.” (Doc. 28 at 4). The Defendant has also put forth unrebutted
evidence that Holt’s actions were not reasonably foreseeable, and that Holt was
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appropriately trained on policies and procedures concerning interactions with inmates,
passed a background check, and was monitored, assessed and supervised throughout
his employment. His actions in entering a closet with an inmate (Plaintiff herein) were
unauthorized by Aramark and resulted in his termination.
Defendant Aramark additionally argues that it cannot be held liable for negligent
supervision and negligent training, because Plaintiff has failed to prove that the
employee (Holt) is individually liable for a tort. The undersigned agrees, to the extent
that Plaintiff has failed to prosecute his claims against either Aramark or Holt.
In addition, to the extent that any reviewing court does not agree with the
recommendation that Aramark be granted judgment on the pleadings for Plaintiff’s
claims of punitive damages and injunctive relief, the undersigned recommends that
judgment be granted on those claims under Rule 56, for the reasons stated in
Defendant’s motion.
C. Plaintiff’s Failure to Prosecute
The recommendation that Defendant Aramark’s motions should be granted in
this case would – at least theoretically – leave in place Plaintiff’s claims against
individual Defendant John Holt, who was served by ordinary mail, but who has never
appeared to answer or otherwise respond. However, the undersigned recommends
instead that the entirety of Plaintiff’s complaint be dismissed for failure to prosecute,
given Plaintiff’s failure to keep this Court apprised of his current address, his failure to
undertake any discovery in this case, and failure to respond to the Defendants’ wellsupported motions despite this Court’s “show cause” order.

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The prison address used by this Court is the only address that Plaintiff has ever
provided since initiating this litigation. It is incumbent upon any litigant, including a pro
se litigant, to keep the Court apprised of his or her current address.

While some

latitude may be extended to pro se litigants Awhen dealing with sophisticated legal
issues...there is no cause for extending this margin to straightforward procedural
requirements that a layperson can comprehend as easily as a lawyer.@ Jourdan v.
Jabe, 951 F.2d 108, 109 (6th Cir. 1991). In order to pay heed to a defendant=s right to
fair and timely resolution of litigation, pro se litigants should not Abe accorded special
consideration@ when they fail to adhere to readily-comprehended court deadlines. See
id., 951 F.2d at 110. Without such basic information as a current address from a wouldbe plaintiff, a court has no recourse but to dismiss a complaint for failure to prosecute.
See, e.g., Whittaker v. Hilltop Records, 2009 WL 2734052 (S.D. Ohio Aug. 27,
2009)(dismissal of pro se plaintiff); Buck v. U.S. Dept. of Agriculture, Farmers Home
Admin., 960 F.2d 603, 608-609 (6th Cir. 1992)(dismissal upheld in part due to counsel=s
failure to advise court of change of address).
The docket of this case reflects that Plaintiff last filed a document with the Court
on December 10, 2015. (Doc. 12). There is no indication in the records of this Court
that he has taken any action in furtherance of his claims since that date. He undertook
no discovery from Defendant Aramark, and was expressly warned by both Defendant
Aramark and by this Court, through the “show cause” order, that his claims were likely
to be dismissed if he failed to respond to the pending dispositive motions.
Under Rule 41(b) of the Federal Rules of Civil Procedure, a court may dismiss
any case for Afailure of the plaintiff to prosecute or to comply with the rules or order of
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the court....@ Unless the court orders otherwise, a dismissal for failure to prosecute
pursuant to Rule 41(b) is an adjudication on the merits that is to be given preclusive
effect, barring subsequent actions based on the same allegations.

See Bragg v. Flint

Bd of Educ., 570 F.3d 775 (6th Cir. 2009).
III. Conclusion
For all the reasons stated herein, IT IS RECOMMENDED THAT Defendant’s
pending motions for judgment on the pleadings and for summary judgment (Docs. 27,
28) be GRANTED, with all claims to be dismissed against Defendant Aramark. IT IS
FURTHER RECOMMENDED that Plaintiff’s case be DISMISSED IN ITS ENTIRETY
WITH PREJUDICE for failure to prosecute, and that this case be CLOSED.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DERRICK MILLS,
Plaintiff,

Case No. 1:15-cv-610

v.

Black, J.
Bowman, M.J.

ARAMARCK CORP., et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS
of the filing date of this R&R. 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 (14) 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).

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