United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN, UNITED STATES MAGISTRATE JUDGE
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
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.
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
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.
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.
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).
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,  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).
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).
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).
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.
Standard of Review
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.
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
Aramark's Motion for Judgment on the Pleadings
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.
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)).
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).
Failure to Show Objective Component
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).
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, ...