Martin v. Aramark Food Corp. et al

Filing 12

REPORT AND RECOMMENDATION AND ORDER: It is recommended that 1 MOTION for Leave to Proceed in forma pauperis be denied, and that Mr. Martin be directed to submit the entire $400.00 filing fee within thirty days if he wishes to proceed with t his action. The motion for leave to plead imminent danger (Doc. 11 ) is denied. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 6/16/2015. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robert Martin,

:
Plaintiff,

v.

: Case No. 2:15-cv-1112
:

Aramark Food Corp., et al.,
Defendants.

: JUDGE GREGORY L. FROST
Magistrate Judge Kemp
:

REPORT AND RECOMMENDATION AND ORDER
I.

Introduction

Plaintiff, Robert Martin, a state prisoner who resides at
the Hocking Correctional Facility, submitted his complaint in
this case on March 27, 2015.

His complaint was accompanied by a

motion for leave to proceed in forma pauperis.

That motion was

not accompanied by the required trust fund statement from his
institution.

Ordinarily, the Court would direct Mr. Martin to

provide a trust fund statement in order to allow the Court to
consider whether to assess a partial filing fee based on that
statement.
However, as this Court pointed out in denying Mr. Martin’s
motion for leave to proceed in forma pauperis in Martin v.
Harlan, Case No. 2:14-cv-1553, Mr. Martin has had three or more
cases or appeals dismissed in the past as frivolous or for
failure to state a claim on which relief can be granted.

See

Martin v. Woods, Case No. 2:12-cv-341 (S.D. Ohio), citing Martin
v. Welch, Case No. 2:10-cv-736 (S.D. Ohio); Martin v. Ohio
Supreme Court, Case No. 2:04-cv-613 (S.D. Ohio); Martin v. Mrs.
Lowery, Case No. 2:04-cv-641 (S.D. Ohio).
Under that portion of the Prison Litigation Reform Act
codified at 28 U.S.C. §1915(g), the so-called "three strikes"

rule, a prisoner may not bring a suit in forma pauperis if that
prisoner "has, on 3 or more occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court
of the United States that was dismissed on the ground that it is
frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of
serious physical injury."

Thus, he is not entitled to proceed in

forma pauperis and to pay the filing fee in installments unless
he can demonstrate that he meets the "imminent danger"
requirement of §1915(g).

Otherwise, he must pay the entire

filing fee (currently $400.00 for prisoners not granted in forma
pauperis status) at the outset of the case.
II.

Procedural History

On March 31, 2015, the Court issued a Report and
Recommendation recommending that Mr. Martin’s motion for leave to
proceed in forma pauperis be denied because he had not addressed
the issue of imminent danger in his complaint.

This original

complaint raised issues relating to an alleged contract entered
into by the Ohio Department of Correction and Rehabilitation and
Aramark Food Service.

Mr. Martin asserted the alleged illegality

of the contract and claims of unjust enrichment.

He stated that

he suffered food poisoning in the past and the institutional
response he received was designed solely to protect Aramark.

He

also asserted various other claims such as public corruption,
including misuse of funds without procedural or substantive due
process protection.

Further, he contended that Aramark was

negligent in serving “tainted foods resembling ‘road kill’ upon
unsuspecting users” such as Ohio inmates and school children.
sought class certification.

He

None of these allegations, however,

were interpreted by the Court as asserting any of his claims in
terms of imminent danger.
On April 6, 2015, Mr. Martin filed objections to the Report
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and Recommendation.

In his objections, Mr. Martin argued that he

asserted imminent danger based on allegations of “frequent bouts
with dysentery/diarreha ongoing to date by Aramark inmates
preparing tainted foods; no fresh vegetables only mush processed
diced green apples served daily. food served causes gum tooth
disease do to mush consistency; mystery road kill tainted meat
served; breakfast juice served with no nutritional value only tow
fDA warnings 2 chemicals are present that could cause
retardation; no fresh food or hamburger or beef is served only a
mystery meat with arteries and other foreign matter Aramark sells
usury priced fundraiser foods prepared by inmates unqualified.”
On April 17, 2015, the Court granted Mr. Martin’s motion to
amend his complaint, noting that Mr. Martin was within the time
for amending as a matter of course.

The first amended complaint

names additional defendants and sets forth claims relating to a
failure to make ADA accommodations in an alleged effort to punish
and retaliate against Mr. Martin and others “similarly situated.”
Mr. Martin alleges specifically that he has been denied the
following medically ordered accommodations as set forth here
verbatim:
a.

long sleeve shirts and floppy hat issued by
GCI medical staff; [skin cancer need].

b.

denied accomodations for C.O.P.D., emphysema,
asthma;

c.

denied accomodation for a thick medical
mattress approved at GCI do to degeneration
of disc disease, herniated disks, severe
narrowing of spine, degenerative discogenic
disease of C4-C5, pinched nerves affecting
walking, sitting, standing, but not limited
to;

d.

Oxley refused to correct ADA disabilities for
lack of light to read causing blurred vision,
headaches.

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On May 12, 2015, the District Judge assigned to this case
issued an order directing Mr. Martin to file a second amended
complaint setting forth claims against all parties in this action
or file a notice that he intends to proceed only on the first
amended complaint.

The District Judge further concluded that, in

light of the amended complaint, the Report and Recommendation was
moot.

Consequently, he returned the matter to the undersigned

Magistrate Judge for a new Report and Recommendation to be issued
after Mr. Martin clarified his pleading.
In response to that order, Mr. Martin has now made three
separate filings - a “Compliance to Order Dated 5.12.15" (Doc.
9), a “Supplimental (sic) Response to 5.12.15 Order” (Doc. 10),
and a motion for “Leave to Plead Imminent Danger in Second
Amended Complaint for Consideration Opposing 5.12.15 Order” (Doc.
11).

Each of these filings will be explained in turn.
According to the first filing, Mr. Martin intends to proceed

only on his first amended complaint.

He states specifically, in

the first paragraph, that “Martin adopts first amended complaint
as sole cause of action.”

He also requests the appointment of

counsel and contends that he did not consent to the jurisdiction
of the Magistrate Judge.
The second filing asserts that the Clerk’s office has not
been sending him time-stamped copies of his filings because he is
indigent thereby violating his right of access to the courts.
This filing also appears to request the consolidation of his
original and first amended complaints (although Mr. Martin
describes the first amended complaint as a second amended
complaint), requests a hearing and the appointment of counsel,
and seeks class action certification and the ability to further
amend.
Mr. Martin’s third filing sets forth what he characterizes
as “additional facts,” presumably in an effort to allege imminent
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danger.

These facts appear to relate to the alleged refusal to

correct FDA chemical warnings on breakfast juice and “prevent
dangerous food chemicals” and the refusal to “recognize ADA
violations.”
III.

Analysis

The first issue before the Court is whether Mr. Martin has
clarified his pleading as directed by the Court in the order of
May 12, 2015 (Doc. 8).

The second issue is whether, considering

the clarification, Mr. Martin has alleged imminent danger
sufficient to allow him to proceed in forma pauperis despite his
previous three strikes.

Resolution of the second issue is quite

simple so the Court will consider these issues in reverse order.
That is, considering all of the issues raised by Mr. Martin, in
whatever form or filing he has raised them, he has failed to
allege imminent danger sufficient to overcome his three strikes.
To meet the imminent danger requirement, the threat or
prison condition must be real and proximate, and the danger of
serious physical injury must exist at the time the complaint is
filed.

Allegations which are speculative or merely conclusory

statements are insufficient to establish imminent danger.

See

Swenson v. Pramstaller, 169 Fed.Appx. 449, 450-51 (6th Cir.
2006); Chance v. Tennessee, 47 Fed.Appx 762, 763 (6th Cir. 2002).
Mr. Martin’s allegations, viewed as a whole, either allege
minor harms or are merely speculative because he has not alleged
any harm he has suffered as a result of the denial of the various
accommodations he describes.

The failure of the claims raised in

his original complaint to establish imminent danger has already
been addressed by the Court in its previous orders.

Mr. Martin’s

additional filings do not support a different result.
In his first amended complaint, he contends that he has been
denied various ADA accommodations.

These allegations, however,

do not address the issue of imminent danger.
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For example, he

asserts that he has been denied long-sleeved shirts and a hat
medically ordered for his skin cancer condition, but he does not
suggest that he is being harmed from being in the sun without
these items.

Further, he claims that he is being denied

accommodations for various respiratory issues but fails to note
what specific accommodations he has been denied or the impact on
his alleged conditions.

Similarly, with respect to the medical

mattress allegedly prescribed, Mr. Martin describes only the
conditions requiring such a prescription and not any harm he has
suffered as a result of the denial of the accommodation.
Finally, although he mentions headaches and blurred vision as a
result of insufficient light, he again fails to provide any
details of harm.
Mr. Martin’s motion for leave to plead imminent danger also
fails to provide any detailed information from which the Court
could conclude that harm to Mr. Martin was imminent.

First, with

respect to the issue of chemical warnings on the breakfast juice,
Mr. Martin makes nothing beyond conclusory statements and does
not indicate that he has any condition impacted by the chemical
warnings.

Further, with respect to the issue of the refusal to

recognize ADA violations, as discussed above, Mr. Martin has
provided no information from which the Court could construe an
allegation of imminent harm.
This brings the Court to the second issue - whether Mr.
Martin has clarified his pleading.

The District Judge directed

Mr. Martin to either file a second amended complaint or file a
notice that he intends to proceed only on the first amended
complaint.

Initially, Mr. Martin filed a notice in response

stating that he intended to proceed only on the first amended
complaint.

Mr. Martin’s subsequent filings, however, have made

his intention less clear.

There is some indication from his

supplemental response that he requests that the Court consider
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his original and amended complaint as one complaint.

This

suggests that Mr. Martin actually wants to proceed with a second
amended complaint which combines the allegations of his first two
complaints.

Regardless of whether this is his intention, he has

not filed a second amended complaint to confirm this intention as
directed by the Court.

Consequently, as the Court has previously

noted, the operative complaint is the first amended complaint.
This brings the Court to Mr. Martin’s final recent filing the motion for leave to plead imminent danger.
be denied.

This motion will

To the extent that Mr. Martin is attempting to amend

his complaint, a request for leave to amend generally is required
to be accompanied by a proposed amended complaint.

Further, as

set forth above, the allegations of that motion do not establish
a likelihood of imminent harm.
Mr. Martin’s various filings also raise a number of
additional issues which lack merit.

With respect to his request

for counsel, because this action has not yet progressed to the
point that the Court is able to evaluate the merits of
plaintiff's claim, this request is denied.
F.2d 254 (6th Cir. l985).

Mars v. Hanberry, 752

With respect to his request for class

certification, it is well established that pro se prisoners
cannot bring class action lawsuits concerning prison conditions.
Dodson v. Wilkinson, 304 Fed. App’x 434, 438 (6th Cir. 2008).
Finally, with respect to Mr. Martin’s request for time-stamped
copies, the law is clear that an inmate has neither a
constitutional nor a statutory right to free photocopies even if
that inmate has been granted the right to proceed in forma
pauperis.

See Hullom v. Kent, 262 F.2d 862 (6th Cir. 1959); see

also Johnson v. Moore, 948 F.2d 517 (9th Cir. 1991).

That

includes free copies of documents that the inmates himself has
previously filed .
June 6, 2007).

Anderson v. Gillis, 2007 WL 1623892 (3d Cir.

It is Mr. Martin’s obligation to provide an extra
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copy at the time of filing if he wants to receive a time-stamped
copy of his documents.

Consequently, this request also is

denied.
IV.

Recommendation and Order

For the reasons stated above, it is recommended that the
motion for leave to proceed in forma pauperis (Doc. 1) be denied,
and that Mr. Martin be directed to submit the entire $400.00
filing fee within thirty days if he wishes to proceed with this
action.

If that recommendation is accepted, he should also be

advised that if he does not pay the fee, the action will be
dismissed and will not be reinstated even upon subsequent payment
of the filing fee.

See McGore v. Wrigglesworth, 114 F.3d 601,

609 (6th Cir. 1997).
The motion for leave to plead imminent danger (Doc. 11) is
denied.
Procedure on Objections to the Report and Recommendation
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which
objection is made, together with supporting authority for the
objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.

Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings
or recommendations made herein, may receive further evidence
or may recommit this matter to the magistrate judge with
instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
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Report and Recommendation de novo, and also operates as a
waiver 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); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
Procedure on Motion for Reconsideration of Order
Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.

S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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