Martin v. Aramark Food Corp. et al

Filing 2

REPORT AND RECOMMENDATION that 1 MOTION for Leave to Proceed in forma pauperis be denied. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 3/31/2015. (agm1)(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
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 recently 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.
Mr. Martin does not address the issue of imminent danger in
his complaint.

Rather, the issues raised by his complaint relate

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

Mr.

Martin asserts the alleged illegality of the contract and claims
of unjust enrichment.

He states that he suffered food poisoning

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

He also asserts various

other claims such as public corruption, including misuse of funds
without procedural or substantive due process protection.
Further, he contends that Aramark is negligent in serving
“tainted foods resembling ‘road kill’ upon unsuspecting users”
such as Ohio inmates and school children.
certification.

He seeks class

None of these allegations, however, can be

interpreted as asserting any of his claims in terms of imminent
danger.
For this reason, 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
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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).
Procedure on Objections
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
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).

/s/ Terence P. Kemp
United States Magistrate Judge

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