Wasanyi v. Aramark Services Incorporated et al

Filing 44

MEMORANDUM OPINION AND ORDER adopting the 42 Proposed Findings and Recommendations; overrules Plaintiff's 43 Objections and grants the 24 Motion to Dismiss for Failure to State a Claim filed by Aramark Services Incorporated; the Court also dismisses, sua sponte, all claims against Defendant Hill, and dismisses this matter without prejudice. Signed by Judge Thomas E. Johnston on 9/24/2024. (cc: counsel of record; any unrepresented party) (lca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
DAVID M. WASANYI,
Plaintiff,
v.

CIVIL ACTION NO. 2:23-cv-00575

ARAMARK SERVICES INCORPORATED, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Aramark Services Incorporated’s (“Aramark”)
motion to dismiss Plaintiff David Wasanyi’s (“Plaintiff”) Complaint. (ECF No. 24.)

The

Complaint asserts claims against Defendant Aramark and its former employee, Defendant Britany
Hill (“Hill”) (collectively, the “Defendants”). Specifically, Plaintiff brings two constitutional
claims against Defendants under 42 U.S.C. § 1983: (1) an Eighth Amendment claim for
deliberative indifference to unsafe and unhygienic work conditions, (ECF No. 1 at 3–5), and (2) a
First Amendment retaliation claim stemming from his complaints about those same allegedly
unsafe and unhygienic work conditions, (id. at 5–6).
By Standing Order entered in this case on August 28, 2023, this action was referred to
United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings and a
recommendation for disposition (PF&R”). (ECF No. 3.) Magistrate Judge Tinsley entered his
PF&R on July 2, 2024, recommending that the Court grant Aramark’s motion to dismiss for failure
to state a plausible claim for relief. (ECF No. 42.) Additionally, the PF&R recommends that

this Court dismiss the Complaint in its entirety for failure to properly exhaust available
administrative remedies as to all Defendants. (Id.) On July 16, 2024, Plaintiff filed timely
objections to the PF&R. (ECF No. 43.)
For the reasons discussed more fully herein, the Court OVERRULES Plaintiff’s
objections, (ECF No. 43), and ADOPTS the PF&R, (ECF No. 42), and DISMISSES this
matter WITHOUT PREJUDICE.
I.

BACKGROUND

A detailed recitation of the facts of this action can be found in Magistrate Judge Tinsley’s
PF&R, (ECF No. 42), and therefore need not be repeated here.
II.

STANDARD OF REVIEW

The Court is required to “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)(C). However, the Court is not required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings
or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150
(1985). In addition, this Court need not conduct a de novo review when a plaintiff “makes general
and conclusory objections that do not direct the Court to a specific error in the magistrate’s
proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982);
see also Smith v. Nuth,1996 WL 593792 (4th Cir. Oct. 16, 1996) (“Because general objections do
not direct the court's attention to any specific portions of the [PF&R], general objections . . . are
tantamount to a failure to object.”). In reviewing those portions of the PF&R to which Plaintiff
has objected, this Court will consider the fact that Plaintiff is acting pro se, and his pleadings will

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be accorded liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead,
582 F.2d 1291, 1295 (4th Cir. 1978).
III.

DISCUSSION

Plaintiff presents four enumerated “objections” to the PF&R. Only the third objection
points to a specific alleged error in PF&R, while the first, second, and fourth objections do not
identify any specific error in the Magistrate Judge’s proposed findings and recommendations.
Each objection is addressed in turn.
A. First and Second Objections
Plaintiff’s first and second objections are not, in fact, objections to the PF&R. After a
careful review of these portions Plaintiff’s objections, the Court cannot discern any specific alleged
error in the Magistrate Judge’s proposed findings and recommendations. (See ECF No. 43 at 1–
6.) Plaintiff simply makes conclusory claims that Aramark had a duty to provide safe food, and
failed to do so in violation federal law, (id. at 1–2), and that the Complaint set forth valid
constitutional claims that will become sufficiently clear during discovery, (id. at 4). These are the
same arguments he made in his response and unauthorized sur-reply to Aramark’s motion to
dismiss, and they are consequently the same arguments that the Magistrate Judge already
addressed in the PF&R. This is further demonstrated by the fact that six of the nine paragraphs
comprising the first objection are copied directly from Plaintiff’s response to the motion to dismiss,
(compare ECF No. 43 at 2–4, with ECF No. 28 at 10–11), as are half of the paragraphs comprising
the second objection, (compare ECF No. 43 at 5–6, with ECF No. 28 at 7–8). Because the
Plaintiff simply rehashes arguments from previous pleadings without pointing to specific errors in
the PF&R, the first two objections amount to nothing more than “conclusory and general”
objections that the Court need not review de novo. See Orpiano, 687 F.2d at 45–46.
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Therefore, the Court OVERRULES Plaintiff’s first and second objections.
B. Third Objection
Plaintiff next objects to the Magistrate Judge’s recommendation that the Court dismiss the
Complaint in its entirety for failure to exhaust all available administrative remedies. (See ECF
No. 43 at 6.) Under the Prison Litigation Reform Act (“PLRA”), a prisoner must exhaust his
administrative remedies prior to the commencement of a civil action under § 1983. See 42 U.S.C.
§ 1997e(a). To that end, each state is responsible for adopting its own administrative grievance
procedures.

See 42 U.S.C. § 1997e(b).

Because Plaintiff is a West Virginia inmate, the

applicable grievance process is outlined in West Virginia Department of Corrections and
Rehabilitation (“WVDCR”) Policy Directive 335.00.
The grievance review process has three levels. First, the Unit Manager is responsible for
responding to an inmate’s grievance. WVDCR Policy Directive 335.00(IV)(G). If an inmate
disagrees with the Unit Manager’s response, he may appeal that decision to the Superintendent.
WVDCR Policy Directive 335.00(V). Then, if the inmate believes that the Superintendent’s
response does not fully resolve his grievance, he may submit an appeal to the Commissioner of
the WVDCR.

WVDCR Policy Directive 335.00(VI).

This three-level process must be

completed for the issue stated in the grievance in order to successfully exhaust all administrative
remedies.
The directive also establishes certain ground rules for filing grievances. Of relevance
here, inmates may only address “one . . . issue or complaint per form,” and each grievance must
be filed within 15 days of the occurrence that caused him to file the grievance. WVDCR Policy
Directive 335.00(IV). Importantly, the policy does not limit the number of grievances an inmate
may file at any one time. See generally WVDCR Policy Directive 335.00. Further, for each
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grievance filed, inmates may attach an additional single-sided page to the grievance form to more
fully describe the facts and issues relating to his grievance. WVDCR Policy Directive
335.00(IV)(F).
Here, Plaintiff completed a single grievance form that alleged deliberately indifferent
treatment by Hill based on his race, which included retaliation for confronting Hill about this same
deliberately indifferent treatment. 1 (See ECF No. 1-1 at 3.) As the PF&R correctly notes,
“careful review of this grievance suggests that it was properly exhausted through all three levels
of the WVDCR grievance process, as the initial response by the Unit Manager was timely affirmed
by both the Superintendent and the Commissioner.” (ECF No. 42 at 13.) As such, Plaintiff
appears to have effectively exhausted his administrative remedies as to his deliberately indifferent
treatment based on race.
Yet, his Complaint curiously contains no reference to race or racial discrimination.
Instead, Plaintiff builds his claims on facts not directly related to his grievance: the alleged
unsanitary and unsafe kitchen conditions, and the related retaliation by Hill when he reported those
conditions to her. While “grievances are not required to rehearse the legal arguments and claims
later asserted against the defendants in a lawsuit[,]” they are “expected to address the subject matter
of [a prisoner’s] potential claims.” (ECF No. 42 at 12 (citing Lowe v. Johnson, No. 2:17-cv-02345,
2018 WL 4222829, at *8 (S.D.W. Va. Aug. 13, 2018), report and recommendation adopted, 2018
WL 4212416 (S.D.W. Va. Sept. 4, 2018)). Racial discrimination is far afield from unsanitary or
unsafe kitchen conditions. Thus, because Plaintiff never filed a grievance related to the First and
Eighth Amendment claims set forth in his Complaint, he has failed to exhaust his remedies related
The Court notes that Plaintiff completed the 2020 version of the WVDCR inmate grievance form rather than the
2022 version that was effective when he initiated his grievance. However, the two forms do not differ in their
substance.

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to those claims.
Nevertheless, Plaintiff claims that the Magistrate Judge also adopted a view of the inmate
grievance procedure that was contrary to West Virginia law, 2 which resulted in the erroneous
conclusion that Plaintiff had not exhausted his remedies. (Id.) In the Plaintiff’s view, the form
used by the Charleston Correction Center and Jail limited his ability to describe the nature of his
grievances in detail, and he should therefore not be penalized for failing to include references to
the unhygienic and unsafe kitchen conditions. (Id.) Specifically, Plaintiff contends that the
grievance form only provided three lines on which he could describe his complaint and only
permitted him to attach one page, which meant that he could not fully elaborate on the details of
the incident or incidents which gave rise to his grievance. (See ECF Nos. 43 at 6 and 30 at 2.)
The Court disagrees.
As Plaintiff acknowledged in his pleadings, WVDCR policy allowed him to elaborate on
the facts surrounding his grievance by attaching an additional page to his grievance. WVDCR
Policy Directive 335.00(IV)(F). Plaintiff chose not to do so. Similarly, he could have filed
separate grievances regarding the unhygienic kitchen conditions, unsafe work environment, the
alleged retaliation by Hill based on his race, and the retaliation by Hill for reporting the unsanitary
and unsafe kitchen conditions. Indeed, the WVDCR policy limiting grievances to one issue or
complaint per form likely required him to do so in order to effectively pursue administrative
remedies for all of the claims alleged in the Complaint. At bottom, Plaintiff’s failure to grieve

Although Plaintiff claims that the procedure runs afoul of West Virginia Code of State Rules § 90-9-4, that regulation
was repealed in March of 2016, well before Plaintiff filed his grievance. See Regular Session 2016, Acts of the
Legislature of West Virginia at 1165–67, available at https://www.wvlegislature.gov/legisdocs/publications
/acts/Acts_2016_Vol_2.pdf (last accessed September 16, 2024). Plaintiff does not cite, and the Court could not find,
any other state law or regulation that could have been violated by CCCJ’s inmate grievance procedure, including the
grievance form itself.
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any facts relating to the kitchen conditions and retaliation for reporting them was not a byproduct
of unlawful limitations imposed by the WVDCR grievance process.
Accordingly, because Plaintiff, at most, exhausted his administrative remedies only as to
claims of deliberate indifference based on his race and retaliation for reporting the same, his third
objection is OVERRULED. 3
C. Fourth Objection
Plaintiff’s fourth objection discusses his alleged “loss of income, pain and suffering”
resulting from being terminated from his kitchen position on July 11, 2023, and consequently
having to complete another 30-day period of community service. (ECF No. 43 at 7–8; see also
ECF Nos. 1-1 at 6, 28 at 4). This objection fairs no better than the first two. Not only does
Plaintiff fail to identify any error in the PF&R, but his objection focuses solely on the remedy he
seeks for his First Amendment retaliation claim. Because the underlying First Amendment claim
fails for the reasons discussed in the previous section, Plaintiff has no avenue to remedies for that
claim. Accordingly, Plaintiff’s fourth objection to the PF&R is OVERRULED.
IV.

CONCLUSION

For the foregoing reasons, the Court ADOPTS the PF&R, (ECF No. 42), OVERRULES
Plaintiff's objections, (ECF No. 43), and GRANTS Defendant Aramark’s motion to dismiss, (ECF
No. 24).

The Court also DISMISSES, sua sponte, all claims against Defendant Hill,

and DISMISSES this matter WITHOUT PREJUDICE.

Because the grievance does not cover the same subject matter as the complaint, the Magistrate Judge recommended
dismissing the Complaint against Hill, who has not been served with process or made an appearance in this case.
(ECF No. 42 at 13 n.6.) To be sure, the Court may sua sponte dismiss a complaint when the failure to exhaust
administrative remedies is apparent from the face of the complaint. See Custis v. Davis, 851 F.3d 358, 361–62 (4th
Cir. 2017). Here, viewing the alleged facts in the complaint and incorporated grievance as true, it is clear that Plaintiff
did not exhaust his administrative remedies as to the unsanitary or unsafe kitchen conditions nor for any retaliation
that occurred when he reported those conditions.

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IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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September 24, 2024