Brewster v. Aramark Correctional Services

Filing 69

REPORT AND RECOMMENDATIONS. It is RECOMMENDED that Aramark's First Motion forJudgment on the Pleadings, ECF 29 , be GRANTED. It is FURTHER RECOMMENDED that the remaining pending motions, ECF 5 , 9 , 10 , 14 , 15 , 68 be DENIED as moot. Objections to R&R due by 10/20/2014. Signed by Magistrate Judge Norah McCann King on 10/2/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GARY A. BREWSTER,
Plaintiff,
Case No. 2:14-cv-273
Judge Marbley
Magistrate Judge King

v.
ARAMARK CORP.,
Defendant.

REPORT AND RECOMMENDATION
This matter is before the Court on Aramark’s First Motion for
Judgment on the Pleadings, ECF 29 (“Aramark’s Motion”).

For the

reasons that follow, it is RECOMMENDED that Aramark’s Motion be
GRANTED.
I.

FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
This action was originally filed by plaintiff, without the

assistance of counsel, in the Court of Common Pleas for Noble County,
Ohio, and was removed to this Court on March 21, 2014 as a diversity
action.

Notice of Removal, ECF 1.

The “complaint” filed in this

action is difficult to follow because it includes multiple documents
with multiple titles, some of which are not in consecutive order and
some of which have duplicate pages.

See Complaint, ECF 2 (including

what appears to be a request for immediate injunctive relief
identifying nine issues and proposing remedies, at PAGEID#:32PAGEID#:34, PAGEID#:39-PAGEID#:47;1 documents entitled civil complaint

1

The parties apparently do not regard this reference to injunctive relief as a
separate, live motion. In any event, plaintiff has filed a separate motion
for immediate injunctive relief, ECF 5, which remains pending.

1

and suit, PAGEID#:35 - PAGEID#:37; documents related to proceeding in
forma pauperis and service of summons, PAGEID#:38, PAGEID#:49PAGEID#:53).

The parties apparently construe the operative

“complaint” to include the factual allegations contained in the
documents referring to injunctive relief and proposed remedies as well
as those allegations appearing in documents referring to “civil
complaint and suit.”

See, e.g., ECF 2, PAGEID#:46 (stating that the

issues identified in the request for injunctive relief “make up the
details of the actual civil action/complaint”); Aramark’s Motion, pp.
3-5 (addressing allegations accompanying the request for injunctive
relief in ECF 2); Plaintiff’s Response to May 12, 2014 Aramark’s First
Motion for Judgment on the Pleadings, ECF 44 (“Plaintiff’s Response”),
pp. 2-3 (referencing allegations contained within the request for
injunctive relief in ECF 2 and stating that plaintiff’s original
filings in state court incorporated the complaint and “issues raised”
in his request for injunctive relief); Aramark’s Reply Brief in
Support of its First Motion for Judgment on the Pleadings, ECF 54
(“Aramark’s Reply”), p. 5 (referencing plaintiff’s proposed remedies
contained in the pages related to injunctive relief, ECF 2).

Under

these circumstances, and construing liberally the filings of a pro se
litigant, see, e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972),
the Court will consider all of the factual allegations contained in
ECF 2 (referred to collectively as “Complaint” for ease of reference)
in considering Aramark’s Motion.
Plaintiff, an inmate currently incarcerated at Noble Correctional
Institution (“NCI”), alleges, on his behalf as well as on behalf of
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“the 2500 other similarly situated inmates[,]” that Aramark Corp.
(“Aramark”), the State of Ohio and the Ohio Department of
Rehabilitation and Correction (“ODRC”) previously entered into a
contract that requires Aramark to “properly feed the inmates at
N.C.I.” by providing “proper nutrition, calories, servings, and
vitamins[.] (“the contract”).”

Complaint, PAGEID#:32, PAGEID#:35.

According to plaintiff, Aramark is paid “$3.61 per day / per inmate at
NCI” for this food service, which began on September 8, 20132 and which
will continue until July 1, 2015.

Id.

Plaintiff alleges that Aramark

failed to meet its food service obligations in the following ways:
[Failed] to provide the properly prepared, served, foods,
and . . . [served] extremely low quality, and short
servings, watered down food / servings and the overall
failure to prepare and serve food in a clean and sanitary
environment and facility, as well as serving bad and
spoiled milk and foods . . . .
A) Failed to provide a sanitary food preparation and
serving, (rats and bugs), failed to properly clean trays
and food preparation utilities used daily and shared by as
many as 30 inmates per meal.
B) Aramark Corp. has failed to provide a proper diet in
quality, quantity, nutrition, serving size and quality
daily – and has served meats, and milk that were not
consumable and of little or no nutritional value.
Id. at PAGEID#:35 - PAGEID#:36.

See also id. at PAGEID#:34,

PAGEID#:42- PAGEID#:47 (containing additional details regarding
alleged deficiencies in portion sizes and quality of food).

Plaintiff

further alleges that Aramark, in violation of the contract, has failed
to operate four serving lines for each meal, which delays meal service
to inmates at NCI.

Id. at PAGEID#:34.

2

Plaintiff goes on to allege

The cited page refers to September 8, 2014, but other references in the
Complaint suggest that plaintiff intended to refer to September 8, 2013.
See, e.g., id. at PAGEID#:36 – PAGEID#:37.

3

that Aramark’s failures in this regard resulted in injury:
Thereby, Aramark Corp. of Columbus, Ohio – operating in
Noble County, Ohio – has injured plaintiff, (inmate class),
by depriving them of proper diet, nutrition, and calories,
and also caused inmates to NOT EAT at chow hall – (for
which Aramark Corp. is paid the same [$]3.61 per day), and
causing inmates and plaintiff to purchase foods from NCI
Commissary to attempt to adequately fed [sic] themselves.
I do note that the inmates confined in segregation cannot
purchase or acquire such additional foods – and are
therefore more seriously injured.
Id. at PAGEID#:36 (emphasis in the original).
Plaintiff seeks multiple types of injunctive relief, which he
identifies as a “Proposed Remedy/Court Order”:
1.

Directing NCI to “verify the actual count of inmates eating

each meal – per day, and calculate that daily average[,]” id. at
PAGEID#:33 (addressing “ISSUE ONE”);
2.

Directing “NCI Administration officials” to “to inform the

Court or the Court’s appointed mediator” “any such failure to operate
four serving lines not just to the proper Aramark Corp. and ODRC
supervisors/department – but to demand contract terms be enforced and
the Defendant held accountable[,]” id. at PAGEID#:34 (addressing
“ISSUE TWO”);
3.

Directing “State-dietician” to “scrutinize[] and accept[]”

a new menu or diet for inmates and directing “this Court’s appointed
over-seer or expert to ensure that proper quantities, serving
portions, and recipes are secured in said contract and that every meal
is then served to meet these new changes[,]” id. at PAGEID#:42
(addressing “ISSUE 3”);
4.

Directing that the “County Prosecutor, Ohio Attorney

General, or the Federal authorities” investigate how Aramark secured
4

“the contract with the State[,]” id. (addressing “ISSUE 4”);
5.

Directing “the ODRC and State Dietician” to “produce an

EXACT APPROVED MENU with details of what items were calculated to be
served in volume and/or weight measures[,]” id. at PAGEID#:43
(emphasis in original) (addressing “ISSUE 5”);
6.

Requesting that the terms of the contract be disclosed, id.

at PAGEID#:45 (addressing “ISSUE 6”);
7.

Ordering “true health department inspections with Court

appointed inspectors in the detail team to verify that health
standards are met, with bacteria test on trays, pans, cups, etc.[,]”
id. at PAGEID#:46 (addressing “ISSUE 7”);
8.

Ordering that no outdated milk be served, id. (addressing

“ISSUE 8”); and
9.

Directing NCI staff take and examine “sample trays” from

inmates “(2 per each of the four lines, per meal)[,]” id. at
PAGEID#:41 (addressing “SUPPLEMENTAL INJUNCTIVE RELIEF ISSUE”).
In addition to injunctive relief, plaintiff seeks compensatory
and punitive damages in “the amount so paid to Aramark Corp. by the
State of Ohio, in the amount of $3.61 per day, with three times this
in Punitive damages.”

Id. at PAGEID#:37.

Finally, plaintiff seeks

“similar relief” for “[a]ll similarly situated persons” and the “taxpayers and citizens of this State who pay said contract costs”).

Id.

See also id. at PAGEID#:35 (alleging that Aramark’s alleged failure to
meet obligations under the contract defrauded taxpayers).
Aramark has moved for judgment on the pleadings, which plaintiff
opposes.

See Plaintiff’s Response.
5

With the filing of Aramark’s

Reply, this matter is ripe for resolution.
II.

STANDARD
A motion for judgment on the pleadings filed pursuant to Rule

12(c) is evaluated by reference to the same standard as is a motion to
dismiss under Rule 12(b)(6), which attacks the legal sufficiency of
the complaint.

See Roth v. Guzman, 650 F.3d 603, 605 (6th Cir. 2011);

Roth Steel Prods. v. Sharon Steel Co., 705 F.2d 134, 155 (6th Cir.
1983).

In determining whether dismissal on this basis is appropriate,

an amended complaint must be construed in the light most favorable to
the plaintiff, and all wellpleaded facts must be accepted as true.
See Bower v. Fed. Express Corp., 96 F.3d 200, 203 (6th Cir. 1996);
Misch v. Cmty. Mut. Ins. Co., 896 F. Supp. 734, 738 (S.D. Ohio 1994).
The United States Supreme Court has explained that, “once a claim has
been stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint.”
Atlantic Corp. v. Twombly, 550 U.S. 544, 546 (2007).

Bell

However, a

plaintiff’s claim for relief “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do.”

Id. at 555.

“Factual allegations must be enough

to raise a right to relief above the speculative level[.]”

Id.

Accordingly, a complaint must be dismissed if it does not plead
“enough facts to state a claim to relief that is plausible on its
face.”

Id. at 570.

III. DISCUSSION
A.

Plaintiff Lacks Standing to Assert His Claims

In moving for judgment on the pleadings, Aramark argues that
6

plaintiff lacks standing to assert his claims.
burden of establishing standing.

Plaintiff has the

See, e.g., Klein v. United States

Dep’t of Energy, 753 F.3d 576, 579 (6th Cir. 2014); Michigan v. Bay
Mills Indian Cmty., 695 F.3d 406, 411 (6th Cir. 2012).

The three

components of standing are:
(1) ‘an injury in fact’; (2) ‘a causal connection’ between
the alleged injury and the defendants’ conduct - that ‘the
injury . . . [is] fairly traceable to the challenged action
. . . and not the result of the independent action of some
third party not before the court’; and (3) redressability —
that the injury will ‘likely . . . be redressed by a
favorable decision.’
Klein, 753 F.3d at 579 (quoting Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992)). In the case presently before the Court,
Aramark argues that plaintiff cannot meet any of the components of
standing.
Aramark contends, first, that plaintiff has not suffered an
injury in fact.

Aramark’s Motion, pp. 3-4.

An injury in fact is “an

invasion of a legally protected interest that is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or
hypothetical.”

600 Marshall Entm’t Concepts, LLC v. City of Memphis,

705 F.3d 576, 585 (6th Cir. 2013) (quoting United States v. Hays, 515
U.S. 737, 742-43 (1995)).

To be particularized, “the injury must

affect the plaintiff in a personal and individual way.”
U.S. at 560 n.1.

Lujan, 504

To the extent that plaintiff complains that the

State of Ohio has overpaid Aramark for NCI’s food service, Aramark
argues that plaintiff is not personally harmed by the State’s alleged
overpayment.

Aramark’s Motion, p. 3.

Although plaintiff also

complains about the quality and quantity of the food, Aramark contends
7

that plaintiff has nevertheless failed to establish an injury in fact
because he “has not alleged that he has missed a meal, that ARAMARK
failed to serve him a meal, or that he has suffered any physical harm
related to any food, tray, or utensil he received from ARAMARK.”

Id.

Plaintiff, however, insists that he has alleged injury, i.e., the
“injury of malnutrition,” through his allegations regarding the
quality and quantity of the food served at NCI.
pp. 2-4.

Plaintiff’s Response,

Plaintiff goes on to argue that Aramark’s actions have

caused additional injury:
[t]he ADDED and MOST DANGEROUS INJURY-In-FACT is that . . .
Aramark’s actions [serving meals deficient in quantity and
size] have now set the stage for physical unrest at these
prisons. Summer time, the hot dorms, inmates waiting for
chow and the delays of recreation and program times, then
being subjected to repeated meals that lack quality,
quantity, that are not prepared and served properly (to
standards) . .. has set the stage for physical unrest!
The potential for injury to staff, to Aramark employees,
and inmates has escalated to a level that not just concerns
prison staff – but alarms them. . . . This resulted in
genuine fear of a riot or bad situation - motivating
security staff to write complaints.
The long term effects of the Defendant subjecting inmates,
(men and women) of all ages to a diet that does not met
[sic] the federal or state minimum standards of nutrition,
of calories, of taste, appearance, of quality, are obvious
to anyone – apparently anyone other than Defendant’s
counsel. The very reason for the standards, for the
contract to state such requirements is to prevent these
very types of abuses and wanton actions.
Id. at 3 (emphasis in original).

Plaintiff also urges the Court to

deny Aramark’s Motion so that this case may proceed in order “to
prevent the otherwise inevitable danger the Defendant will cause.”
Id. at 6.
Seizing on this language, Aramark argues in reply that
8

plaintiff’s desire “to prevent” an “inevitable danger” confirms its
contention that plaintiff’s “injury” is speculative and not a concrete
and actual injury in fact.

Aramark’s Reply, pp. 2-3.

As to the

alleged injury of inadequate food service, Aramark contends that
another court in this circuit has concluded that prisoner-plaintiffs
before it lacked standing to assert claims based on similarly
speculative injuries related to alleged deficiencies in prison food
service and mold in the prison.

Id. at 3-4 (citing Reynolds v.

Herrington, No. 4:13CV-P132-M, 2014 U.S. Dist. LEXIS 44352 (W.D. Ky.
Apr. 1, 2014); Stanfield v. Thompson, No. 4:12CV-P54-M, 2012 U.S.
Dist. LEXIS 108984, at *10 (W.D. Ky. Aug. 3, 2012); Voorhees v. Huber,
No. 1:10CV-76-M, 2010 U.S. Dist. LEXIS 82102, at *6 (W.D. Ky. Aug. 10,
2010)).

According to Aramark, “tension or emotional distress of life

in prison does not amount to a physical injury,” and plaintiff has not
alleged any actual injury resulting from “the stage of physical
unrest” at NCI.

Id. at 4.

Aramark’s arguments are well-taken.

Neither of plaintiff’s

claimed injuries constitutes the required injury in fact.

First,

plaintiff complains generally of the “injury of malnutrition,” but he
does not allege that he, in fact, personally suffered from
malnutrition or that he personally suffered from any other concrete
injury resulting from the allegedly deficient food service.

Instead,

plaintiff simply speculates as to some future, undefined harm.

See,

e.g., Plaintiff’s Response, p. 3 (complaining of unspecified “long
term effects of the Defendant subjecting inmates” to an allegedly
nutritionally deficient diet).

This kind of “speculative injury does
9

not vest a plaintiff with standing[.]”

King v. Deskins, No. 99-6381,

2000 U.S. App. LEXIS 19509, at *4 (6th Cir. Aug. 8, 2000).

Absent

allegations that the alleged “injury of malnutrition” is a “concrete
and particularized” and “actual or imminent” injury that affects him
in a personal way, plaintiff cannot establish an injury in fact.

See,

e.g., id.; Lujan, 504 U.S. at 560 n.1; 600 Marshall Entm’t Concepts,
LLC, 705 F.3d at 585.

See also Reynolds, 2014 U.S. Dist. LEXIS 44352,

at *13-15 (finding no requisite injury where the plaintiff did not
allege that he was housed with mold and alleged only a speculative
injury, i.e., that mold is “a serious and imminent danger to the
health of Plaintiff and all inmates”) (internal quotation marks
omitted); Stanfield, 2012 U.S. Dist. LEXIS 108984, at *10 (finding
that the plaintiff failed to set forth a physical injury suffered as a
result of, inter alia, insufficient meals served at the correctional
institution where the plaintiff alleged that the defendant is “serving
Meals that are way under the required Balance Diets serving Are small
And ½ the size they should be for Bal Diet”) (internal quotation marks
omitted); Voorhees, 2010 U.S. Dist. LEXIS 82102, at *6 (finding
speculative a plaintiff’s claimed injury as a result of mold where
plaintiff “does not cite any symptoms that he experienced related to
breathing the mold such as coughing, allergies, headaches, etc.”);
Price v. Rees, No. 5:06CV-P186-R, 2007 U.S. Dist. LEXIS 62463, at *12
(W.D. Ky. Aug. 23, 2007) (finding that prisoner-plaintiff lacked
standing to assert claim where “he has not alleged that the food is
presently causing him any ill side effects (high blood pressure,
cholesterol, weight gain etc.)”).

Accordingly, plaintiff’s alleged
10

“injury of malnutrition” is also insufficient to establish the
requisite injury in fact.
The alleged potential for physical unrest resulting from
Aramark’s deficient food service is similarly speculative.

Plaintiff

argues that the Complaint establishes “genuine fear of a riot – or bad
situation,” but concedes that no such injury has actually occurred or
harmed him personally.

See, e.g., Plaintiff’s Response, pp. 3

(complaining of, inter alia, “[t]he potential for injury to staff, to
Aramark employees, and inmates” and “long term effects” resulting from
an allegedly deficient diet) (emphasis added), 6 (asking the Court “to
prevent the otherwise inevitable danger the Defendant will cause”).
The kind of speculative injury alleged by plaintiff does not
constitute an injury in fact sufficient to confer standing.

See,

e.g., Lujan, 504 U.S. at 560 n.1; 600 Marshall Entm’t Concepts, LLC,
705 F.3d at 585; King, 2000 U.S. App. LEXIS 19509, at *4.
Even if plaintiff could establish an injury in fact, the Court is
not persuaded that plaintiff has established the component of
redressability, i.e., that the injury will likely be redressed by a
favorable decision.

For example, plaintiff seeks injunctive relief

against persons and entities who are not parties to this litigation.
See, e.g., Complaint, PAGEID#:33-PAGEID#:34; PAGEID#:41-PAGEID#:43;
PAGEID#:45-PAGEID#:46 (seeking injunctive relief against NCI, “NCI
Administration officials,” “State Dietician,” “County Prosecutor, Ohio
Attorney General, or the Federal authorities,” ODRC, “health
department,” “Court appointed inspectors,” and “NCI staff”).

This

Court, however, cannot enter an injunction against persons or entities
11

over whom the Court lacks personal jurisdiction through proper service
of process.

See, e.g., Zenith Radio Corp. v. Hazeltine Research,

Inc., 395 U.S. 100, 110 (1969) (“It is elementary that one is not
bound by a judgment in personam resulting from litigation in which he
is not designated as a party or to which he has not been made a party
by service of process.”); In re NAACP, Special Contribution Fund, Nos.
87-3366, 87-3673, 849 F.2d 1473, 1988 U.S. App. LEXIS 8110, at *6-7
(6th Cir. June 13, 1988) (“An in personam judgment, whether in equity
or at law, is invalid and unenforceable against a defendant unless the
court entering the judgment has in personam jurisdiction.”); Lawson v.
McQuate, No. 2:12-cv-00533, 2012 U.S. Dist. LEXIS 162633, at *2 (S.D.
Ohio Nov. 14, 2012) (“[T]his Court does not have jurisdiction to issue
an injunction against the Ohio Department of Rehabilitation, which is
not a party to this action.”).

Accordingly, the Court is without

power to grant the requested injunctive relief.
Plaintiff also seeks money damages from Aramark, but he fails to
explain how a monetary award will redress his alleged injuries of
malnutrition and the potential for physical unrest at NCI.

Indeed,

plaintiff implicitly concedes that money damages will not remedy these
injuries.

See Complaint, PAGEID#:32- PAGEID#:33 (stating that

injunctive relief is the “only means” to “stop the injuries”).
“Relief that does not remedy the injury suffered cannot bootstrap a
plaintiff into federal court; that is the very essence of the
redressability requirement.”

Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 107 (1998).

For all these reasons, the Court

concludes that plaintiff lacks standing to assert his claims.
12

B.

Plaintiff Lacks Standing to Assert Claims on Behalf of
Others

Plaintiff also purports to assert claims on behalf of others:
“2500 other similarly situated inmates” and “tax-payers and citizens.”
Complaint, PAGEID#:32, PAGEID#:37.

Plaintiff, however, concedes that

he does not have “tax-payer status[.]”

Plaintiff’s Response, p. 6.

Moreover, as explained above, plaintiff must have suffered a concrete
and actual injury that affected him in a personal way; he cannot seek
redress for an injury allegedly suffered by third parties.

Cf. 600

Marshall Entm’t Concepts, LLC, 705 F.3d at 585; Lujan, 504 U.S. at 560
n.1.

Plaintiff therefore lacks standing to assert claims on behalf of

other inmates or citizens.

See, e.g., Warth v. Seldin, 422 U.S. 490,

499 (1975); Dodson v. Wilkinson, No. 06-4136, 304 Fed. Appx. 434, at
*438 (6th Cir. Dec. 24, 2008).

Finally, plaintiff, as a pro se

inmate, may not pursue a class action based on prison conditions.
See, e.g., Dodson, 304 Fed. Appx. 434, at *438; Palasty v. Hawk, No.
00-5840, 15 Fed. Appx. 197, 200 (6th Cir. June 20, 2001) (citing Fymbo
v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (6th Cir. 2000)).3
WHEREUPON, it is RECOMMENDED that Aramark’s First Motion for
Judgment on the Pleadings, ECF 29, be GRANTED.

It is therefore

FURTHER RECOMMENDED that the remaining pending motions, ECF 5, 9, 10,
14, 15, 68 be DENIED as moot.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
3

On August 6, 2014, it was recommended that plaintiff’s motion for
determination as a class action, ECF 20, be denied without prejudice to
renewal should counsel enter an appearance on behalf of plaintiff. Report
and Recommendation, ECF 61. Neither party has objected to this
recommendation.

13

and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

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

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

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

October 2, 2014

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

14