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Correa v. Cullum

United States District Court, S.D. Ohio, Western Division

May 1, 2018

FRED CORREA, Plaintiff,
v.
MR. CULLUM, et al., Defendants.

          Barrett, Judge

          REPORT AND RECOMMENDATION

          STEPHANIE K. BOWMAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, an incarcerated individual at the Southern Ohio Correctional Facility (“SOCF”) who proceeds pro se, tendered a complaint against two prison officials and the prison food service on May 4, 2017. On May 10, 2017, the undersigned granted Plaintiff leave to proceed in forma pauperis, and on June 12, 2017, Plaintiff was granted leave to file an amended complaint to identify the “John Doe” Defendant and correct the spelling of Defendants' names.

         Currently pending before the undersigned are five motions: (1) Plaintiff's motion to compel discovery (Doc. 25); (2) Defendants' joint motion to stay discovery (Doc. 30); (3) Plaintiff's motion to further amend/correct his complaint (Doc. 31); (4) Aramark's motion for judgment on the pleadings (Doc. 33); and (5) the motion of Defendants Cullum and Joiner for judgment on the pleadings (Doc. 41). For the reasons that follow, the undersigned recommends granting the Defendants' two dispositive motions, and denying Plaintiff's motion to further amend. The remaining non-dispositive motions will be denied as moot.

         I. Background

         Plaintiff generally alleges that the SOCF kitchen area where his food is prepared is unsanitary, in part due to a roach and rat infestation that has not been appropriately treated. Plaintiff specifically complains about three food service incidents: (1) on February 6, 2017, he inadvertently consumed two rat legs in his food; (2) on February 12, 2017 he observed rat feces on his dinner tray; and (3) on April 16 or 17, 2017, he swallowed a piece of glass that was in his dinner.

         The focus of the complaint is on the first incident on February 6, 2017. Plaintiff alleges that he choked on a “hard object” that he believes to be a “mutilated rat leg.” He complained to Defendant Correctional Officer Cullum and requested that he call a nurse, but Officer Cullum declined, retorting “it sucks to be you.” (Doc. 3 at ¶14). He alleges that thirty minutes later, he vomited and found an “additional rat leg in his food, ” and subsequently informed Cullum “of the consumption and vomiting of an additional rat leg, [again] requesting medical [attention].” (Id. at ¶¶15-16). Plaintiff again requested but was refused medical assistance by Cullum.

         During pill call later that day, Plaintiff informed the nurse of the incident, but the nurse “simply told Correa to drink water and walked off.” (Id. at ¶18). Later that evening Plaintiff alleges that he filed an informal complaint and turned in a health services request due to his unsettled stomach.

         On February 8, 2017, in response to his request, Plaintiff was examined by Defendant Nurse Joiner. Plaintiff requested a further examination by a physician “to be sure he didn't contract any diseases.” However, Joiner “assured Correa he was fine and only over-reacting, ” telling him that “people hunt and eat rats all the time.” She prescribed “anti-gas tablets” for his stomach, but denied his request to see a physician for an “official” and more complete examination including blood work. (Id. at ¶22). After Joiner declined his request for a visit with a physician and blood work, Plaintiff alleges that his symptoms “later evolved into intolerable stomach aches and nausea.” (Id.) Plaintiff alleges he began to fear for his life due to the possibility that he had contracted a deadly disease from his ingestion of the rat legs. (Id. at ¶24). Plaintiff turned in three additional sick call slips concerning the rat leg incident, for “intolerable stomach aches and severe nausea, ” on February 11, February 17, and March 1, 2017, but alleges that no further treatment was provided. (Id. at ¶¶25, 31).

         Attached to Plaintiff's complaint is a response to Plaintiff's institutional grievance and appeal, which states that Nurse Joiner assessed Plaintiff as “normal” after the rat incident and, after providing “Mintox, ” instructed Plaintiff to follow up “if any further issues.” The response alludes to medical treatment on February 13, 2017 and February 17, 2017 at which Plaintiff was allegedly examined for shoulder issues and “made no other complaint.” (Doc. 3-1 at 26). However, Plaintiff denies that Joiner advised him to follow up, denies the receipt of additional treatment in February, [1] and asserts that he continued to request treatment “concerning the consumption of the rat legs” to no avail. (Id. at ¶¶26-27; Doc. 3-1 at 27). On April 21, 2017, he alleges that he submitted a general complaint that he was not medically seen after turning in requests for treatment to sick call. (Id. at ¶33).

         Plaintiff's allegations regarding the second and third incidents are more succinct. Plaintiff alleges that a second incident occurred on February 12, 2017, when he observed what appeared to be a piece of “rat feces” on a portion of the tray on which his dinner was served. Plaintiff made complaints to the warden, and to the supervisor of Aramark Food Services on the same day. (Id. at ¶¶29-30).

         A third incident occurred on April 17, 2017, when Plaintiff alleges that he consumed “glass through the consumption of that night's dinner.” (Id. at ¶32). He alleges that the shard of glass cut his gum, but does not allege that he required any medical attention. A Declaration attached to his complaint admits that the glass “didn't cause significant injury to my intestines nor cause injury when empties, ” but nonetheless “did cause discomfort when ingested….” (Doc. 3-1 at 49). He alleges that he filled out an informal complaint to the health and safety coordinator. (Id. at ¶32). A response reflects that he was checked by medical staff who found no injury to his mouth or gums. (Doc. 3-1 at 45).

         Plaintiff alleges that the food service provider, Defendant Aramark, exhibited deliberate indifference to Plaintiff's right to a “safe, sanitary and humane conditions, ” in violation of the Eighth Amendment, and that Aramark failed to supervise, prepare, and distribute food under humane, sanitary and safe conditions, causing Plaintiff “serious harm.” (Id. at ¶¶36, 38). He further alleges that individual Defendants Joiner and Cullum exhibited deliberate indifference to his serious medical needs, resulting in unnecessary pain and suffering in violation of the Eighth Amendment. (Id. at ¶¶39-41). Finally, he generally alleges “retaliation” as a result of the complaints he made. Plaintiff seeks both monetary damages and permanent injunctive relief against all three Defendants.

         II. Standard of Review

         A motion to dismiss under Rule 12(b) for failure to state a claim upon which relief may be granted ordinarily is filed in lieu of an Answer. However, the same defenses may be presented in a motion for judgment on the pleading sunder Rule 12(c) after pleadings are closed.

         A district court reviews a Rule 12(c) motion for judgment on the pleadings under the same standard applicable to a Rule 12(b)(6) motion to dismiss. EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001). In considering a motion to dismiss, the Court must “construe the complaint in the light most favorable to the nonmoving party, accept the well-pled factual allegations as true, and determine whether the moving party is entitled to judgment as a matter of law.” Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). While such determination rests primarily upon the allegations of the complaint, “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint, also may be taken into account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)) (emphasis omitted).

         III. Aramark's Motion for Judgment on the Pleadings

         Aramark argues that it is entitled to judgment on the pleadings because Plaintiff's allegations against Aramark fail to state an Eighth Amendment claim. I agree.

         The Eighth Amendment requires prison officials “to provide humane conditions of confinement” and to “ensure that inmates receive adequate food, clothing, shelter, and medical care....” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970 (1994). However, “extreme deprivations are required to make out a conditions-of-confinement claim ... [b]ecause routine discomfort is ‘part of the penalty that criminal offenders pay for their offenses against society.' ” Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). “Not every unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eighth Amendment.” Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir.1987). Rather, “[t]he Eighth Amendment is concerned only with ‘deprivations of essential food, medical care, or sanitation, ' or ‘other conditions intolerable for prison confinement.'” Richmond v. Settles, 450 Fed.Appx. 448, 455-56 (6th Cir.2011) (quoting Rhodes v. Chapman, 452 U.S. 337, 348, 101 S.Ct. 2392 (1981)).

         To establish an Eighth Amendment violation, a plaintiff must first demonstrate objectively the unique deprivation of “the minimal civilized measure of life's necessities.” Id. at 454 (quoting Rhodes, 452 U.S. at 347); see also Brown v. Bargery, 207 F.3d 863, 867 (6th Cir.2000) (citing Farmer, 511 U.S. at 834) (“[T]he inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.”). He then must subjectively show the defendant acted “wantonly, ” with “deliberate indifference to the plaintiff's serious needs.” Richmond, 450 Fed.Appx. at 455 (citing Farmer, 511 U.S. at 834).

         A. Failure to Show Objective Component

         In order to prove the objective element, Plaintiff must demonstrate that the harm to which he was subjected was “objectively, sufficiently serious, ” such “a prison official's act or omission must result in the denial of ‘the minimal civilized measure of life's necessities, '” Farmer v. Brennan, 114 S.Ct. at 1977 (quoting Rhodes, supra, 452 U.S. at 347, additional internal quotation marks and citations omitted). Put another way, for a claim “based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Id. at 834 (additional citation omitted).

         Plaintiff alleges that he was subjected to an objectively serious condition through Aramark's deficient food service. “In general, the severity and duration of deprivations are inversely proportional, so that minor deprivations suffered for short periods would not rise to an Eighth Amendment violation, while ‘substantial deprivations of shelter, food, drinking water, and sanitation' may meet the standard despite a shorter duration.” DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001)(internal citation omitted); see also Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565 (1978). For example, ...


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