Martin v. Aramark Food Corp. et al

Filing 8

ORDER declining to adopt the moot 2 Report and Recommendations and returning the matter of the 1 Motion for Leave to Proceed in forma pauperis to the Magistrate Judge for a new Report and Recommendation to be issued after Pl aintiff clarifies the pleading. Signed by Judge Gregory L. Frost on 5/12/2015. (kk)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification [Robert Martin, 138-186 @ Hocking Correctional Facility, P.O. Box 59, Nelsonville OH 45764])

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT MARTIN,
Plaintiff,
Case No. 2:15-cv-1112
JUDGE GREGORY L. FROST
Magistrate Judge Terence P. Kemp

v.
ARAMARK FOOD CORP., et al.,
Defendants.

ORDER
This matter is before the Court for consideration of the Magistrate Judge’s March 31,
2015 Report and Recommendation. (ECF No. 2.) In that filing, the Magistrate Judge noted that,
because Plaintiff has had three or more cases dismissed in the past as frivolous or for failure to
state a claim upon which relief can be granted, the Prison Litigation Reform Act’s “three strikes”
rule precludes Plaintiff from proceeding in forma pauperis unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g). The Magistrate Judge therefore recommended
that the Court deny Plaintiff’s motion for leave to proceed in forma pauperis and direct Plaintiff
to submit the $400.00 filing fee within thirty days. (Id. at Page ID # 25.)
Plaintiff has filed objections to the Report and Recommendation. (ECF No. 3.) When a
party objects within the allotted time to a report and recommendation, the Court “shall make a de
novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P.
72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
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Complicating disposition of the objections is the fact that Plaintiff has filed an amended
complaint. (ECF No. 7.) The amended complaint adds new parties and claims that are unrelated
to the original complaint’s allegations. The amended complaint also fails to set forth the
allegations of the original complaint. These characteristics suggest that Plaintiff perhaps intends
that both his original complaint and the amended complaint serve as operative pleadings.
Supporting this construction is the fact that the second complaint addresses conduct
allegedly beginning in August 2014. This conduct pre-dates the March 2015 filing of this
lawsuit, which means that the second complaint cannot by definition constitute a supplemental
pleading under Federal Rule of Civil Procedure 15(d). That rule permits the filing of a
supplemental pleading setting out any transaction, occurrence, or even that happened after the
date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). This Court therefore regards
the second complaint as an amended complaint, which is what Plaintiff sought to file by motion
(ECF No. 5) and which is what the Magistrate Judge granted leave to file (ECF No. 6).
As noted above, the problem is that the amended complaint is possibly incomplete. The
Court suspects that Plaintiff intended for both the original complaint and the amended complaint
to present his claims. The Sixth Circuit has explained, however, that “an amended complaint
supercedes an original complaint with respect to which allegations and issues are presented to the
court for disposition.” Smith & Nephew Inc. v. Fed. Ins. Co., 113 F. App’x 99, 102 (6th Cir.
2004). Because only the amended complaint is the operative complaint, the Magistrate Judge’s
Report and Recommendation and Plaintiff’s objections are moot.
That said, the Court recognizes that making three points would likely assist Plaintiff in
litigating this case in the future.
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First, Plaintiff’s now-moot first objection was that the Magistrate Judge lacked
jurisdiction to issue the Report and Recommendation because the parties had not consented to
such an exercise of jurisdiction. This argument incorrectly conflates Magistrate Judge
jurisdiction under 28 U.S.C. § 636(c)(1) over the entire case with jurisdiction to act on select,
designated matters. The Magistrate Judge properly considered Plaintiff’s motion for leave to
proceed in forma pauperis and filed the Report and Recommendation. This Court would have
held Plaintiff’s first objection to be meritless.
Second, Plaintiff’s now-moot second objection was that the Magistrate Judge erred in
finding that, based on the original complaint, Plaintiff is not under imminent danger of serious
physical injury. In his objections, Plaintiff posited that frequent bouts of diarrhea and the risk of
gum and tooth disease from consuming poor quality food constitute the requisite imminent
danger of serious physical injury. The former issue is a minor harm, and the latter issue is
speculative given that Plaintiff has not even alleged that he suffers from gum and tooth decay.
Such assertions fall far short of the conditions the Sixth Circuit has recognized as sufficient
harm. See Vandiver v. Prison Health Services, Inc., 727 F.3d 580, 585-87 (6th Cir. 2013) (listing
examples of serious harms); see also Thompson v. Sampson, No. 1:10-cv-231, 2010 WL
1027897, at *2 (W.D. Mich. Mar. 18, 2010) (same). Plaintiff’s second objection would have
also failed.
Third, Plaintiff’s objections briefing also discusses irrelevant issues, such as whether the
three strikes rule is jurisdictional and whether the Clerk has complied with statutory duties. The
first point confuses this Court’s jurisdiction with the Court’s ability to collect a filing fee. The
second point, involving whether the Clerk has returned a time-stamped copy of the complaint to
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Plaintiff, has nothing to do with the filing fee issue and the Report and Recommendation
rationale.
Despite the foregoing three points and in an effort to clear up the record, the Court
ORDERS that, within thirty days of the date of this Order, Plaintiff must either (1) file a second
amended complaint that sets forth all claims against all parties in this action or (2) file notice that
he indeed intends to proceed only on the April 17, 2015 first amended complaint. As
consequences of this action, the Court also DECLINES to adopt the moot Report and
Recommendation (ECF No. 2) and RETURNS the matter of the motion for leave to proceed in
forma pauperis (ECF No. 1) to the Magistrate Judge for a new Report and Recommendation to
be issued after Plaintiff clarifies the pleading. The Magistrate Judge will make a
recommendation on whether Plaintiff must pay the entire $400.00 filing fee and, if necessary,
also conduct an initial screen of the operative complaint. If Plaintiff fails to comply with this
Order, the Court will dismiss this action for failure to prosecute and for failure to obey an order
of the Court.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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