Correa v. Callum et al

Filing 45

REPORT AND RECOMMENDATIONS re 33 41 Defendants' Motions for Judgment on the Pleadings, 31 Plaintiff's Motion to Further Amend/Correct Complaint. IT IS RECOMMENDED THAT Defendants' motions for judgment on the pleadings 33 41 should be GRANTED and that Plaintiff's motion to further amend/correct his complaint 31 should be DENIED. This case should be dismissed with prejudice and closed. Objections to R&R due by 5/15/2018. Signed by Magistrate Judge Stephanie K. Bowman on 5/1/2018. (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
FRED CORREA,

Case No. 1:17-cv-300

Plaintiff,

Barrett, J.
Bowman, M.J.

v.

MR. CULLUM, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, an incarcerated individual at the Southern Ohio Correctional Facility
(“SOCF”) who proceeds pro se, tendered a complaint against two prison officials and
the prison food service on May 4, 2017. On May 10, 2017, the undersigned granted
Plaintiff leave to proceed in forma pauperis, and on June 12, 2017, Plaintiff was granted
leave to file an amended complaint to identify the “John Doe” Defendant and correct the
spelling of Defendants’ names.
Currently pending before the undersigned are five motions: (1) Plaintiff’s motion
to compel discovery (Doc. 25); (2) Defendants’ joint motion to stay discovery (Doc. 30);
(3) Plaintiff’s motion to further amend/correct his complaint (Doc. 31); (4) Aramark’s
motion for judgment on the pleadings (Doc. 33); and (5) the motion of Defendants
Cullum and Joiner for judgment on the pleadings (Doc. 41). For the reasons that follow,
the undersigned recommends granting the Defendants’ two dispositive motions, and
denying Plaintiff’s motion to further amend. The remaining non-dispositive motions will
be denied as moot.

I.

Background

Plaintiff generally alleges that the SOCF kitchen area where his food is prepared
is unsanitary, in part due to a roach and rat infestation that has not been appropriately
treated.

Plaintiff specifically complains about three food service incidents: (1) on

February 6, 2017, he inadvertently consumed two rat legs in his food; (2) on February
12, 2017 he observed rat feces on his dinner tray; and (3) on April 16 or 17, 2017, he
swallowed a piece of glass that was in his dinner.
The focus of the complaint is on the first incident on February 6, 2017. Plaintiff
alleges that he choked on a “hard object” that he believes to be a “mutilated rat leg.” He
complained to Defendant Correctional Officer Cullum and requested that he call a
nurse, but Officer Cullum declined, retorting “it sucks to be you.” (Doc. 3 at ¶14). He
alleges that thirty minutes later, he vomited and found an “additional rat leg in his food,”
and subsequently informed Cullum “of the consumption and vomiting of an additional rat
leg, [again] requesting medical [attention].” (Id. at ¶¶15-16). Plaintiff again requested
but was refused medical assistance by Cullum.
During pill call later that day, Plaintiff informed the nurse of the incident, but the
nurse “simply told Correa to drink water and walked off.” (Id. at ¶18). Later that evening
Plaintiff alleges that he filed an informal complaint and turned in a health services
request due to his unsettled stomach.
On February 8, 2017, in response to his request, Plaintiff was examined by
Defendant Nurse Joiner. Plaintiff requested a further examination by a physician “to be
sure he didn’t contract any diseases.” However, Joiner “assured Correa he was fine

2

and only over-reacting,” telling him that “people hunt and eat rats all the time.” She
prescribed “anti-gas tablets” for his stomach, but denied his request to see a physician
for an “official” and more complete examination including blood work. (Id. at ¶22). After
Joiner declined his request for a visit with a physician and blood work, Plaintiff alleges
that his symptoms “later evolved into intolerable stomach aches and nausea.” (Id.)
Plaintiff alleges he began to fear for his life due to the possibility that he had contracted
a deadly disease from his ingestion of the rat legs. (Id. at ¶24). Plaintiff turned in three
additional sick call slips concerning the rat leg incident, for “intolerable stomach aches
and severe nausea,” on February 11, February 17, and March 1, 2017, but alleges that
no further treatment was provided. (Id. at ¶¶25, 31).
Attached to Plaintiff’s complaint is a response to Plaintiff’s institutional grievance
and appeal, which states that Nurse Joiner assessed Plaintiff as “normal” after the rat
incident and, after providing “Mintox,” instructed Plaintiff to follow up “if any further
issues.” The response alludes to medical treatment on February 13, 2017 and February
17, 2017 at which Plaintiff was allegedly examined for shoulder issues and “made no
other complaint.” (Doc. 3-1 at 26). However, Plaintiff denies that Joiner advised him to
follow up, denies the receipt of additional treatment in February, 1 and asserts that he
continued to request treatment “concerning the consumption of the rat legs” to no avail.

1

Regardless of the referenced dispute over the February treatment, not all of Plaintiff’s requests for
additional treatment have been ignored. In fact, Plaintiff seeks to further amend his complaint to complain
about additional medical treatment received on April 17, 2017 from a Nurse Practitioner (Conley), and on
May 1, 2017 from a dentist concerning his complaint of a shard of glass causing a cut to his gum. Plaintiff
complains that on April 17, the Nurse Practitioner failed to document the cut because his examination
was too brief. (Doc. 31-1 at ¶11). Plaintiff allegedly signed up for a dental visit in order to properly
document his injury, but complains that treatment also was inadequate insofar as the dentist documented
a small area of scar tissue on his lower gum, but determined no treatment was needed. (Id. at ¶13)

3

(Id. at ¶¶26-27; Doc. 3-1 at 27). On April 21, 2017, he alleges that he submitted a
general complaint that he was not medically seen after turning in requests for treatment
to sick call. (Id. at ¶33).
Plaintiff’s allegations regarding the second and third incidents are more succinct.
Plaintiff alleges that a second incident occurred on February 12, 2017, when he
observed what appeared to be a piece of “rat feces” on a portion of the tray on which his
dinner was served. Plaintiff made complaints to the warden, and to the supervisor of
Aramark Food Services on the same day. (Id. at ¶¶29-30).
A third incident occurred on April 17, 2017, when Plaintiff alleges that he
consumed “glass through the consumption of that night’s dinner.” (Id. at ¶32). He
alleges that the shard of glass cut his gum, but does not allege that he required any
medical attention. A Declaration attached to his complaint admits that the glass “didn’t
cause significant injury to my intestines nor cause injury when empties,” but
nonetheless “did cause discomfort when ingested….” (Doc. 3-1 at 49). He alleges that
he filled out an informal complaint to the health and safety coordinator. (Id. at ¶32). A
response reflects that he was checked by medical staff who found no injury to his mouth
or gums. (Doc. 3-1 at 45).
Plaintiff alleges that the food service provider, Defendant Aramark, exhibited
deliberate indifference to Plaintiff’s right to a “safe, sanitary and humane conditions,” in
violation of the Eighth Amendment, and that Aramark failed to supervise, prepare, and
distribute food under humane, sanitary and safe conditions, causing Plaintiff “serious
harm.” (Id. at ¶¶36, 38).

He further alleges that individual Defendants Joiner and

4

Cullum exhibited deliberate indifference to his serious medical needs, resulting in
unnecessary pain and suffering in violation of the Eighth Amendment. (Id. at ¶¶39-41).
Finally, he generally alleges “retaliation” as a result of the complaints he made. Plaintiff
seeks both monetary damages and permanent injunctive relief against all three
Defendants.
II.

Standard of Review

A motion to dismiss under Rule 12(b) for failure to state a claim upon which relief
may be granted ordinarily is filed in lieu of an Answer. However, the same defenses
may be presented in a motion for judgment on the pleading sunder Rule 12(c) after
pleadings are closed.
A district court reviews a Rule 12(c) motion for judgment on the pleadings under
the same standard applicable to a Rule 12(b)(6) motion to dismiss. EEOC v. J.H. Routh
Packing Co., 246 F.3d 850, 851 (6th Cir. 2001). In considering a motion to dismiss, the
Court must “construe the complaint in the light most favorable to the nonmoving party,
accept the well-pled factual allegations as true, and determine whether the moving party
is entitled to judgment as a matter of law.” Commercial Money Ctr., Inc. v. Illinois Union
Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). While such determination rests primarily
upon the allegations of the complaint, “matters of public record, orders, items appearing
in the record of the case, and exhibits attached to the complaint, also may be taken into
account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (quoting Nieman v.
NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)) (emphasis omitted).

5

III.

Aramark’s Motion for Judgment on the Pleadings

Aramark argues that it is entitled to judgment on the pleadings because Plaintiff’s
allegations against Aramark fail to state an Eighth Amendment claim. I agree.
The Eighth Amendment requires prison officials “to provide humane conditions of
confinement” and to “ensure that inmates receive adequate food, clothing, shelter, and
medical care....” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970 (1994).
However,

“extreme

deprivations

are

required

to

make

out

a conditions-of-

confinement claim ... [b]ecause routine discomfort is ‘part of the penalty that criminal
offenders pay for their offenses against society.’ ” Hudson v. McMillian, 503 U.S. 1, 9
(1992) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “Not every unpleasant
experience a prisoner might endure while incarcerated constitutes cruel and unusual
punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d
950, 954 (6th Cir.1987). Rather, “[t]he Eighth Amendment is concerned only with
‘deprivations of essential food, medical care, or sanitation,’ or ‘other conditions
intolerable for prison confinement.’” Richmond v. Settles, 450 Fed. Appx. 448, 455–56
(6th Cir.2011) (quoting Rhodes v. Chapman, 452 U.S. 337, 348, 101 S.Ct. 2392
(1981)).
To establish an Eighth Amendment violation, a plaintiff must first demonstrate
objectively the unique deprivation of “the minimal civilized measure of life's necessities.”
Id. at 454 (quoting Rhodes, 452 U.S. at 347); see also Brown v. Bargery, 207 F.3d 863,
867 (6th Cir.2000) (citing Farmer, 511 U.S. at 834) (“[T]he inmate must show that he is
incarcerated under conditions posing a substantial risk of serious harm.”). He then must

6

subjectively show the defendant acted “wantonly,” with “deliberate indifference to the
plaintiff's serious needs.” Richmond, 450 Fed. Appx. at 455 (citing Farmer, 511 U.S. at
834).
A. Failure to Show Objective Component
In order to prove the objective element, Plaintiff must demonstrate that the harm
to which he was subjected was “objectively, sufficiently serious,” such “a prison official's
act or omission must result in the denial of ‘the minimal civilized measure of life's
necessities,’” Farmer v. Brennan, 114 S.Ct. at 1977 (quoting Rhodes, supra, 452 U.S. at
347, additional internal quotation marks and citations omitted). Put another way, for a
claim “based on a failure to prevent harm, the inmate must show that he is incarcerated
under conditions posing a substantial risk of serious harm.” Id. at 834 (additional citation
omitted).
Plaintiff alleges that he was subjected to an objectively serious condition through
Aramark’s deficient food service. “In general, the severity and duration of deprivations
are inversely proportional, so that minor deprivations suffered for short periods would
not rise to an Eighth Amendment violation, while ‘substantial deprivations of
shelter, food, drinking water, and sanitation’ may meet the standard despite a shorter
duration.” DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)(internal citation
omitted); see also Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565 (1978). For
example, “[a] filthy, overcrowded cell and a diet of ‘grue’ might be ... intolerably cruel for
weeks or months” but tolerable for several days. Id. at 686–687.

7

Aramark argues that, accepting Plaintiff’s allegations at face value, his assertion
that he inadvertently ingested foreign material found in his food on two occasions (the
rat legs on February 6, 2017 and the shard of glass on April 17, 2017) are simply too
few in number, too isolated in time, and resulted in too little injury to demonstrate a
plausible claim for an objectively sufficiently serious deprivation of sanitary and edible
food. The additional consideration of the third incident on February 12, 2017, on which
Plaintiff observed rat feces on the tray on which his meal was served, does not push
Plaintiff’s claim over the threshold of showing the type of “extreme” deprivation of
sanitary food that would state a constitutional violation under prevailing law.
Based upon a review of relevant case law, the undersigned agrees that the three
referenced incidents over the course of two and a half months do not rise to the level of
a constitutional deprivation. While the objective component of an Eighth Amendment
claim could be stated if the food is so inedible that it exposes an inmate to serious harm
on a sustained basis, Plaintiff’s allegations as a whole reflect a less extreme
deprivation. 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.

Thus, courts

routinely dismiss claims that allege only occasional incidents of foreign objects
discovered in prison food.
For example, in Balcar v. Smith, 2017 WL 380931 (W.D. Ky. Jan. 26, 2017), an
inmate alleged that Aramark Food Service served him unhealthy, inadequate and

8

unsanitary food, prepared in an unsanitary roach and rat infested environment, and
including food that contained hair and rat feces, meat that was raw, and food that was
nutritionally inadequate. The district court held that Plaintiff’s allegations failed to state
an Eighth Amendment violation. “The fact that the [prison] food occasionally contains
foreign objects or is sometimes served cold, while unpleasant, does not amount to a
constitutional deprivation.” Balcar, 2017 WL 380931 at *4 (quoting Smith v. Younger,
1999 U.S. App. LEXIS 20168 at *5 (6th Cir. Aug. 9, 1999)) The Sixth Circuit agreed:
Isolated exposure to foreign bodies in food, including those of rodents and
insects, does not constitute an Eighth Amendment violation. See Smith v.
Younger, No. 98–5482, 1999 WL 623355, at *2 (6th Cir. Aug. 9, 1999)
(citing Hamm v. DeKalb Cty., 774 F.2d 1567, 1575 (11th Cir. 1985)).
Moreover, the isolated nature of finding such foreign objects and the
length of exposure to them are significant. See Lamb v. Howe, ––– Fed.
Appx. ––––, 2017 WL 318790, at *5 (6th Cir. Jan. 23, 2017); see
also DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001). “A filthy
overcrowded cell and diet of ‘grue’ might be tolerable for a few days and
intolerably cruel for weeks or months.” Hutto v. Finney, 437 U.S. 678,
686–87 (1978).
The nature of the inconveniences presented in Balcar's claims regarding
foreign bodies in his food and the presence of rodents and insects in the
kitchen area, while serious, were occasional according to his complaint,
did not result in any alleged injury, and did not consistently create
conditions that fell below the “minimal civilized measure of life's
necessities as measured by a contemporary standard of
decency.” See Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir.
2001).
Balcar, 2017 WL 3613479, at *1–2 (6th Cir. July 7, 2017); see also Kilgore v.
Thompson, 2015 WL 13273315 at *6 (E.D. Ky. Oct. 13, 2015)(collecting cases and
concluding that “occasional or episodic incidents of contaminated food or unclean food
areas are not constitutional violations”); Newsom v. Hall, 2012 WL 3579547 at *3 (M.D.
Tenn. Aug. 17, 2012)(“The Court therefore finds that his allegations regarding the insect
9

in his food and the sight of insects in the dining room do not rise to the level of a
constitutional violation”); Kennibrew v. Russell, 578 F. Supp. 164, 168 (D.C.Tenn.1983)
(noting that the Sixth Circuit has stated that a complaint about the preparation or quality
of prison food is “generally far removed from Eighth Amendment concerns,” quoting
Cunningham v. Jones, 567 F.2d 653, 659-660 (6th Cir. 1977)); Freeman v. Trudell, 497
F. Supp. 481 (E.D. Mich. 1980)(“[a]n occasional incident of a foreign object finding its
way into the food, while regrettable, does not raise a question of constitutional
proportion”)(internal quotation marks and additional citation omitted”); Lovern v.
Cox, 374 F. Supp. 32, 35 (W.D.Va. 1974).
In his response in opposition to Aramark’s motion, Plaintiff argues generally that
his food was so “routinely unsanitary that it presents an immediate threat to his safety,”
because it was not “nutritionally adequate.” However, there are no allegations in his
complaint that he was denied edible food so routinely that he lost weight or suffered any
other significant illness. 2

A broad allegation of nutritional deficiency, without more

detail, is insufficient to support an Eighth Amendment claim. See, e.g., Sims v. Mich.
Dep't of Corr., 23 Fed. Appx. 214, 215-16 (6th Cir. 2001) (rejecting Eighth Amendment
claim based on assertion that the plaintiff received only one cup of fruit as one of the six
meals he received in one day); Price v. Jones, 2012 WL 1854299, at *4 (S.D. Ohio May

2

Even if he had included such allegations, courts have found a lack of any cognizable claim in the
absence of extreme deprivation. Witschi v. N.C. Dep't of Pub. Safety, 2014 U.S. Dist. LEXIS 103300, at
*7, 2014 WL 3735135 (W.D.N.C. July 29, 2014) (finding no Eighth Amendment claim despite Plaintiff's
allegation that he was not being fed a sufficient diet because he did not allege facts suggesting that his
health had deteriorated as a result of his diet regimen); Kemp v. Drago, 2013 U.S. Dist. LEXIS 113430,
*21, 2013 WL 4874972 (D.S.C. Sept. 11, 2013) (holding that “Plaintiff's allegation of a seventeen-pound
weight loss does not state a cognizable claim” of inadequate nourishment).

10

4, 2012)(dismissal of Eighth Amendment claim based on the plaintiff’s failure to allege
his health suffered as a result of alleged inadequacies in prison meal plan).
It is worth noting that analogous allegations of spoiled or moldy food have been
held not to state a sufficiently “extreme” deprivation under the Eighth Amendment.
Accord Chavis v. Fairman, 51 F.3d 275 (7th Cir. 1995)(Table)(occasional service of
spoiled food cannot be said to deprive inmates of basic nutritional needs); Jackson v.
Gusman, 2015 U.S. Dist. LEXIS 136243, at *17-18 (E.D. La. Aug. 31, 2015) (dismissing
allegation of being served spoiled food on multiple occasions for failure to state a
constitutional claim)(report and recommendation), adopted by 2015 U.S. Dist. LEXIS
136241, 2015 WL 5823295 (E.D. La. Oct. 2, 2015); Lewis v. Taylor, 2016 U.S. Dist.
LEXIS 128360, 2016 WL 5213943 (N.D. Fla. Aug. 9, 2016)(allegations of service of
substandard and spoiled food while in segregation failed to meet objective component
of an Eighth Amendment claim).

Likewise, in cases where inmates allege the

deprivation of meals, courts have found no Eighth Amendment violation when the
deprivation was not deemed to be extreme. See Cunningham v. Jones, 667 F.2d 565,
566 (6th Cir. 1982) (per curiam) (providing a prisoner only one meal per day for fifteen
days did not violate the Eighth Amendment, because the meals provided contained
sufficient nutrition to sustain normal health); Davis v. Miron, 502 Fed. Appx. 569, 570
(6th Cir. 2012) (denial of seven meals over six days is not an Eighth Amendment
violation); Richmond v. Settles, 450 Fed. Appx. 448, 456 (6th Cir. 2011) (same).

11

In addition to his general complaints of “unsanitary” food preparation conditions,
which do not demonstrate the objective component of an Eighth Amendment claim, 3
Plaintiff argues that the critical distinction between this case and the cited body of case
law is that he inadvertently ingested some portion of at least one of the rat legs, which
caused him to suffer an “actual injury ..which he was unable to recover from.” (Doc. 35
at 8). In other words, Plaintiff distinguishes his claim on the basis that he ingested
contaminants and suffered a sufficiently “serious” harm because he vomited and
suffered from nausea.
However, the court dismissed similar allegations in Velhuysen v. Aramark
Correctional Servs., Inc., 2017 WL 236191 (W.D. Mich., Jan 19, 2017), a case in which
the plaintiff alleged that he was served spoiled and moldy food on four separate
occasions, became violently ill with frequent bowl movements and vomiting, high fever,
upset stomach, vomiting, nausea and bloody bowel movements for 2-3 days after
another meal, and was received yet another deficient meal on a sixth date.

Even

though two of the incidents were back-to-back days in December and three more were
within the same week in August, the court held that all six incidents still constituted only
“isolated incidents” that did “not constitute a sufficiently serious deprivation” under the
objective component of the Eighth Amendment. Id. at *2. The court added:
Valthuysen’s allegation of apparent food poisoning on one occasion, even
considered along with his other allegations, still does not allege conduct
sufficiently serious to establish an Eighth Amendment violation. In
numerous cases, courts have held that a single incident of food poisoning
does not amount to an Eighth Amendment violation.
3

See Jackson v. Aramark, 2017 WL 3176284, at *3–4 (W.D.Ky. 2017)(collecting cases).

12

Id. at *2 (collecting cases). Likewise, in Wiley v. Kentucky Dept. of Corrections, 2012
WL 5878678 (E.D. Ky. Nov. 21, 2012), the court also 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 (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 Johnson v. Kilgore, 2006 WL
42281, * 4 (W.D.Va. Jan.6, 2006)(Because “minor weight fluctuations and occasional
bouts of diarrhea and vomiting are normal occurrences in life and can be attributed to
stress and minor illness,” they are insufficient to support an Eighth Amendment
claim.); accord Fox v. Mayfield Graves Co. Detention Center, 2015 WL 1438447
(W.D.Ky. March 27, 2015)(single instance of food poisoning from maggot-infested food
insufficient to state claim); Payne v. Mohr, 2011 WL 4712086 (same);
Like the inmates in the referenced cases, Plaintiff alleges only three instances of
unsanitary conditions impacting his food over a two and a half month period – two
involving foreign objects in his meals, and a third involving his discovery of rat feces on

13

the tray on which his food was being served. He alleges that he vomited after ingesting
rat legs (the first incident), and that his nausea and stomach pain have persisted, but
alleges no weight loss or significant injury other than a fear of having been exposed to a
rat-borne disease. He alleges no injury from the discovery of the rat feces. And he
alleges only a cut on his gum that caused “discomfort” from the ingestion of glass, but
did not require any medical attention. (See Doc. 3-1, response to informal complaint,
stating that medical staff found no injury to mouth or gums; Doc. 3-1 at 49, conceding
no injury). Taken as a whole, these allegations do not show an objectively “serious”
deprivation of “essential food, medical care, or sanitation.” Rhodes, 452 at 348; see
also Leonard v. Smoot, 2013 WL 1755750 (S.D. Ohio 2013)(potential exposure to
infectious diseases as a result of unsanitary food service procedures insufficient to
demonstrate sufficiently serious deprivation).
B. Subjective Component
Even if Plaintiff were able to satisfy the objective component of an Eighth
Amendment claim against Aramark, Aramark would still be entitled to judgment on the
pleadings based upon Plaintiff’s failure to include allegations that would demonstrate
the subjective element of his Eighth Amendment claim. Deliberate indifference requires
a “state of mind more blameworthy than negligence.” Farmer, 511 U.S. at 835. To
recover under the Eighth Amendment, Plaintiff must show that Aramark subjectively
perceived facts from which it inferred a substantial risk existed to Plaintiff of serious
harm, actually drew that inference, and then disregarded the risk. The Supreme Court
has long rejected “a reading of the Eighth Amendment that would allow liability to be

14

imposed on [defendants] solely because of the presence of objectively inhumane prison
conditions.” Farmer, 114 S.Ct. at 1979 (quoting Wilson v. Seiter, 501 U.S. 294, 299-300,
111 S. Ct. 2321, 2324-2326 (1991)); see also Krutko v. Franklin County, Ohio, 559 Fed.
Appx. 509, 511 (6th Cir. 2014)(remanding to district court to conduct an individualized
inquiry to determine whether any of the defendants were entitled to qualified immunity
based upon the evidence presented as to the defendants' subjective state of mind).
As Aramark is quick to point out, nowhere in his complaint does Plaintiff allege
that Aramark was deliberately indifferent to any substantial risk of serious harm to
Plaintiff. Plaintiff does not allege in his compliant that Aramark knew of and deliberately
included foreign bodies in his food on February 6 or April 17, that it was aware of the rat
feces on his tray on February 12, or the shard of glass that appeared in his food in April.
Thus, Plaintiff’s complaint fails to make a sufficient factual showing that Aramark acted
with the requisite subjective intent to demonstrate an Eighth Amendment violation.
Plaintiff also does not allege that Aramark was in any way responsible for
whatever infestation may have existed in the prison, or that Aramark was responsible
for treatment of the infestation, as opposed to other prison sanitation services. To the
contrary, Plaintiff alleges that it was “SOCF officials” who “acknowledge[d] the roach
and rat infestation and still [chose] not to act appropriately.” (Doc. 3 at ¶7). In the
absence of any allegations involving unconstitutional behavior by Aramark, as opposed
to mere negligence in its food preparation, Plaintiff has failed to state an Eighth
Amendment claim against Aramark.

15

In his response in opposition, Plaintiff has attempted to introduce additional
allegations and evidence, in the form of a declaration by a fellow inmate, Donnell Perry,
that he observed an Aramark pull out a “partial rat” from a food tray prepared on
February 6, 2017, but was chastised by the Aramark employee and prevented from
discarding the entire food tray that was contaminated. (Doc. 35-1 at 2).

Aramark

objects to the consideration of this new evidence, because in deciding a motion for
judgment on the pleadings, a court is confined to considering the pleadings, the
affidavits and exhibits that Plaintiff attached to his complaint, and documents that are
expressly referenced in the complaint.
Technically, Aramark is correct. To the extent that this Court does not convert
Aramark’s Rule 12(c) motion to a Rule 56 motion for summary judgment, the newly
presented evidence attached to Plaintiff’s memorandum in opposition cannot be
considered, and thus does not overcome the fact that Plaintiff’s complaint fails to allege
the requisite subject intent by Aramark.
However, even if the new declaration is considered and the motion is construed
under Rule 12(b)(6), Aramark would still be entitled to judgment as a matter of law
because the allegations in the declaration fall short of showing “deliberate indifference”
by Aramark. Taking Perry’s allegations as true, the alleged actions of the Aramark
worker in choosing to continue serving the food from the contaminated pan falls short of
meeting the Eighth Amendment standard.

Aside from the question of whether the

Aramark employee in question acted with the requisite bad intent and specifically
perceived, but disregarded, a serious risk to the health of SOCF prisoners who would

16

receive the meal, the Declaration fails to show any broader policy or custom or intent by
Aramark, the corporation. As another court explained:
Plaintiff's claim against Aramark fails because the corporation cannot be
liable for individual employees' actions based upon a theory of respondeat
superior or vicarious liability. It is well established that a plaintiff bringing
an action pursuant to § 1983 cannot premise liability upon a theory of
respondeat superior or vicarious liability. Street v. Corr. Corp. of Am., 102
F.3d 810, 818 (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658
(1978)). A plaintiff that sues a private or public corporation for
constitutional violations under § 1983 must establish that a policy or
custom caused the alleged injury. Sova v. City of Mt. Pleasant, 142 F.3d
898, 904 (6th Cir. 1998); Street, 102 F.3d at 818. The Sixth Circuit has
specifically held that like a municipal corporation, a private corporation's
“liability must also be premised on some policy that caused a deprivation
of [a prisoner's] Eighth Amendment rights.” Starcher v. Corr. Med. Sys.,
Inc., 7 Fed.Appx. 459, 465 (6th Cir. 2001). Plaintiff has pleaded no facts
supporting his allegation that the rocks in his taco were the result of a
policy or custom on the part of Aramark. Thus, because Aramark is not
liable under a theory of respondeat superior for individual employees'
alleged deliberate indifference to Plaintiff's medical needs, Plaintiff's
complaint is properly dismissed.
Spates v. Aramark Food Service, 2016 WL 4136528, at *2 (W.D.Mich. 2016)
(dismissing suit as failing to state Eighth Amendment claim against Aramark where
foreign objects caused broken teeth and sensitivity for two months, requiring surgery).
Because Plaintiff has failed to state an Eighth Amendment claim against
Aramark, the Defendant is also entitled to judgment on the pleadings on Plaintiff’s
claims for injunctive relief and/or for punitive damages.
IV.

The Motion of Defendants Joiner and Cullum for Judgment on the
Pleadings
A. Plaintiff’s Conditions-of-Confinement
Against Cullum and Joiner

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Food

Service

Claim

Plaintiff alleges that Defendant Cullum told him, “it sucks to be you,” and refused
to summon medical assistance for Plaintiff on February 6, 2017, when Plaintiff first
discovered the rat legs. Plaintiff further alleges that Defendant Joiner refused to provide
adequate medical treatment for his condition, instead providing only “anti-gas”
medication for his stomach, telling him he was over-reacting and would be fine, and
refusing to schedule a physician visit for a more complete examination and blood work.
Thus, the primary allegations against the individual Defendants relate to the alleged
failure of medical care, and not directly to the provision of food service.

Neither

Defendants Cullum nor Joiner is alleged to have played any role in causing Plaintiff to
be served contaminated meals on February 6 and April 17, 2017, nor are they alleged
to have caused rat feces to be placed on Plaintiff’s dinner tray on February 12, 2017.
Based upon their lack of involvement, as well as for the reasons for which Aramark is
entitled to judgment on the pleadings on the “conditions of confinement” claim involving
the food that Plaintiff received, Defendants Joiner and Cullum are entitled to judgment
on the pleadings on the same claim.
B. Plaintiff’s Claim of Deliberate Indifference to Serious Medical
Need Against Defendants Cullum and Joiner
1. Defendant Cullum
Defendant Cullum also is entitled to judgment on the pleadings on any additional
claim that he exhibited deliberate indifference to Plaintiff’s serious medical needs or
retaliated against Plaintiff. In his response in opposition to the joint motion of
Defendants Cullum and Joiner to dismiss his claims, Plaintiff requests “that this court
does in fact remove Defendant Cullum from this suit/action.” (Doc. 43 at 3). Thus it
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appears that Plaintiff is voluntarily dismissing the Defendant.
Even if Plaintiff continued his claim, however, the allegations fail to state a claim
against Cullum, who is accused only of making a sarcastic comment and failing to
summon immediate medical attention on February 6. Assuming that Cullum was made
aware that Plaintiff had vomited, there is nothing to suggest that Cullum was aware that
the circumstances posed any serious health risk to Plaintiff. Plaintiff was actually seen
at pill call later that same evening and told to drink water, and was again seen by Nurse
Joiner on February 8. In addition, Plaintiff’s allegation that Cullum failed to write an
incident report fails to state any claim for relief under 42 U.S.C. §1983. See Mitchell v.
McNeil, 487 F.3d 374, 378 (6th Cir. 2007). Plaintiff suffered no harm from that action,
since Plaintiff himself wrote an informal complaint, and there was a full investigation of
the incident. (See Doc. 3-1).
2. Nurse Joiner
Plaintiff alleges that he was seen by Nurse Joiner on February 8, in response to
his health services request for medical attention. He alleges that he explained his
health concerns, due to his inadvertent consumption of rat legs that appeared to be in a
“fairly fresh state,” with possible blood-borne contaminants. Plaintiff alleges that Nurse
Joiner prescribed anti-gas medication for his stomach, but refused his request for a
more “official” examination by a physician, along with blood work, to verify that he had
not contracted any diseases. Instead, Nurse Joiner told him he was “over-reacting” and
would be fine. Later, after his visit with Nurse Joiner, Plaintiff alleges that his “stomach
ache evolved into intolerable stomach aches and nausea that became severe.” (Doc.

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43 at 1; see also Doc. 3 at ¶23). As a result, Plaintiff alleges that he submitted three
additional health services requests for treatment on February 11, February 17, and
March 1, 2017, but that he did not receive a response to any of the three requests.
Defendant Joiner is entitled to judgment as a matter of law because Plaintiff
cannot show that she was aware of a “serious” medical need, defined as 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.” Jones
v. Muskegon County, 625 F.3d 935, 941 (6th Cir. 2010)(quoting Harrison v. Ash, 539
F.3d 510, 518 (6th Cir. 2008)). At the time Joiner observed Plaintiff on February 8, he
alleges that he felt nauseous and had a stomach ache. He states that he requested the
medical attention after vomiting on February 6, and after continuing to experience
stomach discomfort. Plaintiff’s main complaint against Defendant Joiner concerns her
refusal on February 8 to refer him for a more complete medical work-up with a physician
based upon his fear that he may have contracted some form of rat-borne illness.
However, Plaintiff does not allege any worsening symptoms until after Defendant Joiner
prescribed anti-gas tablets and reassured him he should be fine. At the time Nurse
Joiner saw Plaintiff, his symptoms were not objectively “serious.”
The allegations against Nurse Joiner do not reflect anything more than (at most)
negligence. She did not ignore Plaintiff’s complaints of stomach upset, but prescribed
medication that she believed to be appropriate based upon his symptoms at that time.
Her alleged comments clearly evince an attempt to reassure Plaintiff, and reflect
precisely the opposite of the subjective component of an Eighth Amendment claim.

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“[T]o prove the required level of culpability, a plaintiff must show that the official: (1)
subjectively knew of a risk to the inmate’s health, (2) drew the inference that a
substantial risk of harm to the inmate existed, and (3) consciously disregarded that risk.”
Jones, 625 F.3d at 941 (additional citations omitted). When a claim is filed against a
prison medical provider, courts will generally find deliberate indifference “where there is
evidence tending to establish that the physician [or nurse] is present while the inmate is
in distress, that distress is communicated to the physician, and the physician
purposefully ignores the distress knowing that an adverse outcome is likely to occur.”
Jones, 625 F.3d at 945. A misdiagnosis will not amount to an Eighth Amendment claim.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Jones, 625 F.3d at 945.

Plaintiff admits

that he is “ultimately alleging that his medical care, in his opinion, has been inadequate.”
(Doc. 43 at 3). Although it is clear that Nurse Joiner denied Plaintiff’s request for a full
examination by a physician and blood work based upon his expressed concerns for his
“health for the future,” (Doc. 43 at 2), a difference of opinion over the appropriate
treatment or diagnosis is insufficient to state a claim of deliberate indifference under the
Eighth Amendment. Hix v. Tenn. Dept. of Corrections, 196 Fed. Appx. 350, 357 (6th
Cir. 2006); see also Apanovitch v. Wilkinson, 32 Fed. Appx. 704, 707 (6th Cir. 2002);
Durham v. Nu’Man, 97 F.3d 862, 868-69 (6th Cir. 1996).

The only ailment that

Defendant Joiner is alleged to have observed at the time she examined Plaintiff was his
unsettled stomach, for which she prescribed medication.
Plaintiff argues that Defendant Joiner should be held liable because his health
“rapidly declined” after his visit with her, leading to more severe stomach ache and

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nausea, (Doc. 3 at ¶¶23, 25) which symptoms he describes in his memorandum in
opposition as “similar to the flu.” (Doc. 43 at 2). However, Plaintiff’s allegations do not
indicate or even suggest that Defendant Joiner was ever made aware that his unsettled
stomach had progressed into more severe symptoms after her examination on February
8, 2017. Plaintiff alleges that he first reported those symptoms by submitting a “sick call
slip” on February 11, 2017, three days after Nurse Joiner examined him, and that he
followed up by submitting two additional requests on February 17 and March 1 for
additional treatment. (Id. at ¶¶25, 31). He states that he received no response to any of
the three requests. Notably, Plaintiff does not allege that Nurse Joiner played any role
in failing to respond. Because no malevolent intent is alleged or can be ascribed under
those circumstances, Nurse Joiner is entitled to judgment on the pleadings.
Just as Plaintiff attempts to add to his allegations against Aramark in his
response in opposition to Aramark’s motion for judgment, however, he adds new
allegations in his response in opposition to Nurse Joiner’s motion to dismiss. Plaintiff
argues that Joiner could be held liable based upon a new allegation that she “was
present” at SOCF on the days that he submitted the requests, and that based on her
knowledge of the incident, she should have known he required additional treatment.
(Doc. 43 at 3). Even if the court were inclined to draw such an inference (or permit
Plaintiff leave to amend his complaint to include this new allegation), the undersigned
would still recommend that judgment be entered in favor of Nurse Joiner.
Arguably, Plaintiff’s allegedly worsening symptoms, which he describes as
“similar to the flu”, still fall short of satisfying the objective component of an Eighth

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Amendment claim. Plaintiff maintains that his claim is based upon the fact that Nurse
Joiner was “aware of his exposure to blood and consumption of rat limbs, was sick due
to the consumption and, in her opinion, felt that I was over reacting so did not
respond….”

(Doc. 43 at 3, emphasis added). Even if a reviewing court would find

Plaintiff’s post-February 8 symptoms come closer to satisfying the objective component
of an Eighth Amendment claim, his argument and allegations against Nurse Joiner still
fall short of showing the requisite subjective intent, because they reflect her (allegedly
misguided, but not malevolent) opinion that her treatment was adequate.
C. Miscellaneous Claims and Qualified Immunity
Just as Aramark is entitled to judgment on the pleadings insofar as Plaintiff seeks
declaratory or injunctive relief, or punitive damages, so too is Defendant Joiner entitled
to judgment on those claims for relief, since he has failed to make out any claim against
her. Although Plaintiff’s primary claim falls under the Eighth Amendment, Defendant
Joiner is also entitled to judgment on any possible “retaliation” claim that Plaintiff may
be asserting, because such a claim is entirely conclusory and does not contain sufficient
factual detail. 4

Last but not least, Defendant Joiner is clearly entitled to qualified

immunity on all claims filed against her.
V.

Plaintiff’s Motion to Further Amend/Correct His Complaint (Doc. 31)

In a motion to amend/correct his complaint that was filed prior to the Defendants’
4

It is not clear that Plaintiff is asserting such a claim against Nurse Joiner or any Defendant. Although
Plaintiff’s complaint alludes to “retaliation,” which Aramark construed as a First Amendment retaliation
claim, Plaintiff states in his response to that Defendant’s motion to dismiss that he “never claimed a First
Amendment Retaliation Claim against Aramark.” (Doc. 35 at 2). Nurse Joiner’s motion to dismiss does
not address any construed “retaliation” claim, and Plaintiff’s response in opposition is similarly devoid of
discussion of any possible claim against Nurse Joiner under the First Amendment.

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respective motions for judgment on the pleadings, Plaintiff sought to amend his
complaint in order to identify the first names of Defendants Cullum and Joiner, and to
correct the name of Defendant Aramark to Aramark Services Inc., LLC.

Because the

respective Defendants have all responded fully through their motions, and are entitled to
judgment as a matter of law on all claims, Plaintiff’s motion is moot.
To the extent that Plaintiff also seeks to add new Defendants and claims, the
motion should be denied on grounds that he fails to state any claim. Plaintiff seeks to
add two new individuals: “Anthony Cadogan, Deputy Warden of Special Services,” and
“Nurse Practitioner David Conley.” (Doc. 31). The new allegations pertain to the third
“glass shard” incident in April 2017.

He alleges that Nurse Practitioner Conley

assessed Plaintiff’s alleged gum injury on April 17, 2017 but did an inadequate and
“very plain check up” by looking with a flashlight in Plaintiff’s mouth and claiming that
“he did not see any injuries to his gum line.” Plaintiff alleges that he informed Conley
that he believed he also had swallowed a piece of the glass but that “Conley gave
Correa the impression he just did not care,” and “failed to document the injury.” (Doc.
31-1 at 2, ¶11). In an attempt to have “his injuries documented,” Plaintiff visited a
dentist on May 1, 2017. The dentist documented a small area of white scar tissue
approximately three centimeters long, but “noted it was healed and no treatment was
needed.”

(Doc. 31-1 at

¶¶12-13).

No allegations appear in the tendered second

amended complaint against Deputy Cadogan other than that he was the “Deputy
Warden of Special Services” at SOCF.
For the reasons stated above, the treatment provided for the glass shard incident

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does not state an Eighth Amendment claim against Nurse Practitioner Conley, and no
claim is stated against Deputy Cadogan. Plaintiff’s allegations fail to reflect a “serious”
medical condition from the cut on his gum, or that either of the newly identified
Defendants exhibited the requisite subjective “deliberate indifference” to any serious
medical need.
VI.

Conclusion and Recommendations

Accordingly, IT IS RECOMMENDED THAT Defendants’ motions for judgment on
the pleadings (Docs. 33, 41) should be GRANTED and that Plaintiff’s motion to further
amend/correct his complaint (Doc. 31) should be DENIED.

This case should be

dismissed with prejudice and 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
FRED CORREA,

Case No. 1:17-cv-300

Plaintiff,

Barrett, J.
Bowman, M.J.

v.

MR. CULLUM, 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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