United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION
C. NUGENT, JUDGE
se Plaintiff Steven McClairn filed the above-captioned
action against Aramark Company. In the Complaint, Plaintiff
alleges Aramark was negligent in discovering and remedying
the actions of an employee who harassed Plaintiff with
racially demeaning language. He seeks $ 50, 000.00 in
damages, and an order requiring Aramark to promote
anti-discrimination policies and provide training to their
and Procedural Background
is an inmate in the Grafton Correctional Institution
(“GCI”), assigned to work in the food service
area of the prison. Aramark is a corporation that provides
contract food services to various organizations, including
GCI. Plaintiff identifies the Food Service Coordinator at GCI
as an individual named Steppenbacker. Plaintiff does not
indicate whether Steppenbacker is an employee of Aramark, or
an employee of GCI.
alleges that on December 16, 2016, Steppenbacker called him
“boy.” Plaintiff found that comment to be
racially demeaning, and asked Steppenbacker
to stop referring to him in that manner. Steppenbacker did
not stop and, in fact, increased his efforts by following
Plaintiff around the food service area and repeatedly calling
him “boy.” This action was witnessed by other
food service workers. Plaintiff claims he complained to an
Aramark supervisor but the supervisor did not resolve the
situation to Plaintiff's satisfaction. He indicates he
was so emotionally distressed by the incident that he took
time off from his work assignment. He also states he could
not sleep or eat due to anxiety and fear. Plaintiff filed a
grievance against Steppenbacker. The Institutional Inspector
found it to have merit. Shortly thereafter, Steppenbacker was
fired. Plaintiff claims Aramark is liable for
Steppenbacker's conduct because the company was negligent
in discovering and remedying Steppenbacker's actions.
pro se pleadings are liberally construed, Boag
v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam);
Haines v. Kerner, 404 U.S. 519, 520 (1972), the
Court is required to dismiss an in forma pauperis
action under 28 U.S.C. § 1915(e) if it fails to state a
claim upon which relief can be granted, or if it lacks an
arguable basis in law or fact. Neitzke v. Williams,
490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d
1196 (6th Cir. 1990); Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). A claim
lacks an arguable basis in law or fact when it is premised on
an indisputably meritless legal theory or when the factual
contentions are clearly baseless. Neitzke, 490 U.S.
of action fails to state a claim upon which relief may be
granted when it lacks “plausibility in the
Complaint.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 564 (2007). A pleading must contain a “short
and plain statement of the claim showing that the pleader is
entitled to relief.” Ashcroft v. Iqbal , 556
U.S. 662, 677-78 (2009). The factual allegations in the
pleading must be sufficient to raise the right to relief
above the speculative level on the assumption that all the
allegations in the Complaint are true. Twombly, 550
U.S. at 555. The Plaintiff is not required to include
detailed factual allegations, but must provide more than
“an unadorned, the-Defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A
pleading that offers legal conclusions or a simple recitation
of the elements of a cause of action will not meet this
pleading standard. Id. In reviewing a Complaint, the
Court must construe the pleading in the light most favorable
to the Plaintiff. Bibbo v. Dean Witter Reynolds,
Inc., 151 F.3d 559, 561 (6th Cir. 1998).
seeks to hold Aramark responsible for Steppenbacker's
actions on one occasion. Supervisory liability cannot be
imposed on a theory of respondeat superior. See
Monell v. Department of Soc. Servs., 436 U.S. 658, 691
(1978). Aramark can only be held liable under 42 U.S.C.
§ 1983 for its own wrongdoing. Id. An entity
violates § 1983 where its official policy or custom
actually serves to deprive the Plaintiff of his or her
constitutional rights. Id. To state a claim against
Aramark, Plaintiff first must establish that he was deprived
of a constitutional right and second that this occurred as a
result of Aramark's policy. See Radvansky v. City of
Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005);
Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003).
initial matter, Plaintiff does not allege facts to suggest
that his constitutional rights were violated by
Steppenbacker's actions. The Eighth Amendment imposes a
constitutional limitation on the power of the states to
punish those convicted of crimes. Punishment may not be
“barbarous” nor may it contravene society's
“evolving standards of decency.” Rhodes v.
Chapman, 452 U.S. 337, 346 (1981). The Eighth Amendment
protects inmates by requiring that “prison officials
... ensure that inmates receive adequate food, clothing,
shelter, and medical care, and ...‘take reasonable
measures to guarantee the safety of the inmates.' ”
Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).
This, however, does not mandate that a prisoner be free from
discomfort or inconvenience during his or her incarceration.
Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987)
(quoting Rhodes, 452 U.S. at 346). Prisoners are not
entitled to unfettered access to the medical treatment of
their choice, see Hudson v. McMillian, 503 U.S. 1, 9
(1992), nor can they “expect the amenities,
conveniences and services of a good hotel.” Harris
v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988); see
Thaddeus-X v. Blatter, 175 F.3d 378, 405 (6th Cir.
1999). In sum, the Eighth Amendment affords the
constitutional minimum protection against conditions of
confinement which constitute health threats, but does not
address those conditions which cause the prisoner to feel
merely uncomfortable or which cause aggravation or annoyance.
Hudson, 503 U.S. at 9-10 (requiring extreme or grave
Supreme Court in Wilson v. Seiter, 501 U.S. 294, 298
(1991), set forth a framework for courts to use when deciding
whether certain conditions of confinement constitute cruel
and unusual punishment prohibited by the Eighth Amendment.
Plaintiff must first plead facts which, if true, establish
that a sufficiently serious deprivation has occurred.
Id. Seriousness is measured in response to
“contemporary standards of decency.”
Hudson, 503 U.S. at 8. Routine discomforts of prison
life do not suffice. Id. Only deliberate
indifference to serious medical needs or extreme deprivations
regarding the conditions of confinement will implicate the
protections of the Eighth Amendment. Id. at 9.
Plaintiff must also establish a subjective element showing
the prison officials acted with a sufficiently culpable state
of mind. Id. Deliberate indifference is
characterized by obduracy or wantonness, not inadvertence or
good faith error. Whitley v. Albers, 475 U.S. 312,
319 (1986). Liability cannot be predicated solely on
negligence. Id. A prison official violates the
Eighth Amendment only when both the objective and subjective
requirements are met. Farmer v. Brennan, 511 U.S.
825, 834 (1994).
Plaintiff contends that an Aramark employee called him
“boy” and persisted in doing so after Plaintiff
asked him to stop. Although this behavior was highly
unprofessional, verbal harassment and offensive comments do
not rise to the level of an Eighth Amendment violation.
See Ivey, 832 F.2d at 955; Oltarzewski v.
Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Plaintiff
cannot claim Aramark's policy caused Steppenbacker to
violate his constitutional rights.
Plaintiff must identify a policy or custom of Aramark which
Steppenbacker followed when committing the acts in question.
Plaintiff can meet this criteria by demonstrating one of the
following: (1) the existence of an illegal official policy or
legislative enactment; (2) an official with final decision
making authority ratified the illegal actions; (3) the
existence of a policy of inadequate training or supervision;
or (4) the existence of a custom or tolerance or acquiescence
of federal rights violations. Burgess v. Fisher, 735
F.3d 462, 478 (6th Cir. 2013). To establish liability based
on inadequate training or tolerance of federal rights
violations, Plaintiff must allege a clear and consistent
pattern of constitutional violations placing the Defendant on
notice that their continued inaction would amount to
deliberate indifference to the rights of others. Slusher
v. Carson, 540 F.3d 449, 456-57 (6th Cir. 2008); Doe
v. Claiborne County, 103 F.3d 495, 507 (6th Cir. 1996).
Plaintiff does not allege Aramark had a policy or custom of
allowing its employees to refer to inmates in racially
derogatory terms or to harass inmates, nor does he allege an
official with final decision-making authority ratified
Steppenbacker's action. Instead, Plaintiff alleges
Aramark was negligent in promptly ...