Harris v. Aramark Incorporation et al

Filing 23

REPORT AND RECOMMENDATIONS re 22 Amended Complaint: It is RECOMMENDED that the Court DISMISS all claims for monetary damages against the Individual Defendants in their official capacities and any claims based solely on a Defendant's supervis ory capacity. It is FURTHER RECOMMENDED that Plaintiff's negligence claim under state law against the Individual Defendants be DISMISSED WITHOUT PREJUDICE to renewal should the Ohio Court of 8 Claims determine that the state employees are not en titled to immunity under O.R.C. § 9.86. Finally, it is RECOMMENDED that Plaintiff be allowed to proceed on his remaining claims. Objections to R&R due by 1/25/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on January 11, 2018. (jlk) (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
EASTERN DIVISION
HERMAN HARRIS, JR.,
Plaintiff,
Civil Action 2:17-cv-872
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

ARAMARK INCORPORATION,
et al.,
Defendants.

INITIAL SCREEN REPORT AND RECOMMENDATION
Plaintiff, Herman Harris, Jr., a state inmate who is proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983 against Aramark Incorporation, Aramark
Correctional Services, Inc., Timothy Shoop as the Deputy Warden of Operations at Chillicothe
Correctional Institution (“CCI”), and employees at Pickaway Correctional Institution (“PCI”)
(together with Defendant Shoop, “the Individual Defendants”). (ECF No. 6.) This matter is
before the Court for the initial screen of Plaintiff’s Amended Complaint (ECF No. 22) under 28
U.S.C. §§ 1915(e)(2) and 1915A to identify cognizable claims and to recommend dismissal of
Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A(b); see also McGore v. Wrigglesworth, 114
F.3d 601, 608 (6th Cir. 1997). Having performed the initial screen, for the reasons that follow, it
is RECOMMENDED that the Court DISMISS all claims for monetary damages against the
Individual Defendants in their official capacities, Plaintiff’s negligence claim under state law

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against the Individual Defendants, and any claims based solely on a Defendant’s supervisory
capacity. It is FURTHER RECOMMENDED that Plaintiff be permitted to proceed with his
remaining claims.
I.
Plaintiff alleges that, at all times relevant to his Complaint, he was confined at PCI.
(Amended Complaint, ECF No. 22, ¶ 4 (“Am. Compl.”).) Plaintiff, who was working in PCI
food service, alleges that on or around March 5, 2017, he was given “a highly toxic chemical
cleaning product” (the “chemical”) and directed to clean an area. (Id. at ¶¶ 5–7.) According to
Plaintiff, he was not properly trained to use the chemical, was given no safety protections, and
was not supervised while using the chemical. (Id. at ¶ 7.) Plaintiff alleges that after using the
chemical, he sustained burns and injury to his hands and has undergone multiple minor hand
surgeries. (Id. at ¶¶ 7, 11, 25.) Plaintiff names as Defendants Aramark Incorporation, Aramark
Correctional Services, Inc., and the Individual Defendants in their individual and official
capacities. (Id. at caption, ¶ 23.) Plaintiff seeks declaratory relief as well as exemplary,
compensatory, and punitive damages. (Id. at ¶ 52.)
II.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

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U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*

*

*

(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
1

Formerly 28 U.S.C. § 1915(d).

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assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court
holds pro se ain complaints “‘to less stringent standards than formal pleadings drafted by
lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th
Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient
treatment, however, has limits; “‘courts should not have to guess at the nature of the claim
asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v.
Brown, 891 F.2d 591, 594 (6th Cir. 1989)).
III.
Plaintiff brings his federal law claims against Defendants under 42 U.S.C. § 1983, which
provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceedings for redress.
In order to proceed under Section 1983, a plaintiff must prove both that (1) the perpetrator acted
under color of state law; and (2) the conduct deprived the complainant of rights, privileges, or
immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S.

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527, 535 (1981); Brandon v. Allen, 719 F.2d 151, 153 (6th Cir.1983), rev’d and remanded sub
nom, Brandon v. Holt, 469 U.S. 464 (1985). As a general rule, a plaintiff proceeding under
§ 1983 must allege that the deprivation of his rights was intentional or at least the result of gross
negligence. Davidson v. Cannon, 474 U.S. 344, 348 (1986). Mere negligence is not actionable
under § 1983. Chesney v. Hill, 813 F.2d 754, 755 (6th Cir. 1987).
A.

Claims for Money Damages Against the Individual Defendants in Their Official
Capacities
As a preliminary matter, § 1983 does not permit Plaintiff to bring his claim for money

damages against the Individual Defendants in their official capacities. Section 1983 imposes
liability only upon a “person” who, under color of law, subjects another person to a deprivation
of federal rights. 42 U.S.C. § 1983. In suits for damages, state officials acting in their official
capacity are not “persons” under § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989). Plaintiff’s § 1983 claims for money damages against the Individual Defendants in their
official capacities, therefore, are not cognizable. See Gean v. Hattaway, 330 F.3d 758, 766 (6th
Cir. 2003).
B.

Negligence Claim Against the Individual Defendants
Plaintiff alleges that Defendants’ negligence resulted in his injuries. (Am. Compl. at ¶

39.) As set forth above, simple negligence is not actionable under § 1983. Chesney, 813 F.2d at
755. To the extent Plaintiff intends to assert a state-law claim of negligence against the
Individual Defendants, that claim is also unavailing. The United States Court of Appeals for the
Sixth Circuit has recognized “Ohio law requires that, prior to asserting a claim against a state
employee in his individual capacity, the Court of Claims must first determine that the employee
is not entitled to the immunity provided for in Ohio Revised Code § 9.86.” Haynes v. Marshall,
887 F.2d 700, 705 (6th Cir. 1989). The Ohio Court of Claims has made no such determination in

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this matter. This Court, therefore, is not in a position to determine whether the Individual
Defendants are immune from Plaintiff’s state-law claim of negligence. Until the Ohio Court of
Claims determines that they are not immune, then, Plaintiff’s state-law negligence claim against
the Individual Defendants is not cognizable in this Court. Prior to the Court of Claims’
determination, there is no negligence claim under Ohio law upon which relief can be granted
against Individual Defendants in their individual capacities. The only cognizable negligence
claim against the Individual Defendants, at least initially, lies against the State of Ohio in the
Court of Claims. Id. (citing Ohio Rev. Code Ann. § 2743.02(F)). Accordingly, the Undersigned
finds that Plaintiff’s state-law claim of negligence is not properly before this Court and will not
be until such time as a cause of action against Defendants is recognized under Ohio law.
C.

Claims Based Only on Supervisory Liability
To state a claim against a defendant in his or her individual capacity, a plaintiff must

allege personal involvement of the defendant in causing plaintiff’s injury. Hardin v. Straub, 954
F.2d 1193, 1196 (6th Cir. 1992). A party cannot be held liable under Section 1983 unless the
party personally participated in, or otherwise authorized, approved or knowingly acquiesced in,
the allegedly unconstitutional conduct. Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th
Cir. 1989). To establish liability under Section 1983 against an individual defendant, a plaintiff
must plead and prove that the defendant was personally involved in the conduct that forms the
basis of his complaint. Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002); Shehee v. Luttrell,
199 F.3d 295, 300 (6th Cir. 1999); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (stating
that, “[a]t a minimum a [Section] 1983 plaintiff must show that a supervisory official at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct”).
Thus, a claimed constitutional violation must be based on active unconstitutional behavior,

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Greene, 310 F.3d at 899; Shehee, 199 F.3d at 300, and cannot be based upon the mere right to
control employees. Polk Co. v. Dodson, 454 U.S. 312, (1981); Monell v. New York City Dep’t of
Soc. Serv., 436 U.S. 658 (1978). A plaintiff must demonstrate that a supervisory defendant “did
more than play a passive role in the alleged violation or showed mere tacit approval of the goings
on.” Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). Supervisory liability cannot be
based upon the failure to act, Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004), or simply
because a supervisor denied an administrative grievance or failed to act based upon information
contained in a grievance. Shehee, 199 F.3d at 300. Merely bringing a problem to the attention of
a supervisory official is not sufficient to impose liability. Shelly v. Johnson, 684 F.Supp. 941,
946 (W.D. Mich. 1987).
In the instant case, Plaintiff refers to certain Individual Defendants as acting in “a
supervisory position.” (Am. Compl. at ¶¶ 7, 13, 15, 17, 20–21.) It is not immediately clear from
Plaintiff’s allegations whether he intends to base liability exclusively on these Individual
Defendants’ supervisory capacity. To the extent that he intends to bring claims against these
Individual Defendants merely because of their role as a managers or supervisor, Plaintiff’s
claims have no merit.
III.
For the reasons explained above, it is RECOMMENDED that the Court DISMISS all
claims for monetary damages against the Individual Defendants in their official capacities and
any claims based solely on a Defendant’s supervisory capacity. It is FURTHER
RECOMMENDED that Plaintiff’s negligence claim under state law against the Individual
Defendants be DISMISSED WITHOUT PREJUDICE to renewal should the Ohio Court of

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Claims determine that the state employees are not entitled to immunity under O.R.C. § 9.86.
Finally, it is RECOMMENDED that Plaintiff be allowed to proceed on his remaining claims.

PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the 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
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat=l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).

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IT IS SO ORDERED.

Date: January 11, 2018

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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