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Harris v. Aramark Inc.

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

January 15, 2020

HERMAN HARRIS, JR., Plaintiff,
v.
ARAMARK INCORPORATION, et al., Defendants.

          Michael H. Watson Judge.

          REPORT AND RECOMMENDATION

          Elizabeth P. Deavers Chief Magistrate Judge.

         Plaintiff, 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. (collectively, “Aramark”), [1] Aramark employees Chad Kohn, [2] Chad Hunt, and Gail Sayre (collectively, “the Aramark Employees”; collectively with Aramark, “the Aramark Defendants”), 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 CCI and PCI Defendants”). This matter is before the Court for consideration of the Motion to Dismiss of Defendants Timothy Shoop, C. Crockett Harris, Missy Roush, Mary Lawrence, and Justin Swanson (ECF No. 36), Motion to Dismiss of Interested Party, the State of Ohio, on Behalf of Defendant Stephen Ratcliff (ECF No. 37), Aramark's Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 45), and the Aramark employees' Motion to Dismiss (ECF No. 46). For the reasons that follow, it is RECOMMENDED that Aramark's Motion to Dismiss (ECF No. 45), Aramark Employees' Motion to Dismiss (ECF No. 46), Plaintiff's Motion to Dismiss (ECF No. 56), and CCI and PCI Defendants' Motion to Dismiss as it relates to Defendant Swanson (ECF No. 36) be GRANTED. It is FURTHER RECOMMENDED that the Motion to Dismiss of Interested Party, the State of Ohio, on Behalf of Defendant Stephen Ratcliff (ECF No. 37) and CCI and PCI Defendants' Motion to Dismiss as it relates to Defendants Shoop, Crockett Harris, Roush, and Lawrence (ECF No. 36) be DENIED AS MOOT.

         I. BACKGROUND

         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, Defendant Sayre, Aramark “Food Service Coordinator/Supervisor” who was under the direct supervision of Aramark's “Food Service Assistant Manager” Defendant Hunt, gave Plaintiff “a highly toxic chemical cleaning product[, ]” Sysco HD Degreaser Supc 0616526 (the “chemical”), and directed him to clean an area in PCI. (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.) As a result, Plaintiff alleges that he has suffered severe emotional distress, pain and suffering, and “possible [future] medical concerns” “resulting in nerve damage and/or unforeseeable injuries to his skin tissue in both his left and right hands.” (Id. at ¶ 25.)

         II. STANDARDS OF REVIEW

         A. Federal Rule of Civil Procedure 12(b)(6)

         The Aramark Defendants[3] and the CCI and PCI Defendants move to dismiss Plaintiff's claims against them for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (ECF Nos. 36, 37, 45.) To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a plaintiff must satisfy the basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). 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) (emphasis in original).

         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 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).

         In considering whether a complaint fails to state a claim upon which relief can be granted, the Court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Ohio Police & Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. Thus, while a court is to afford plaintiff every inference, the pleading must still contain facts sufficient to “provide a plausible basis for the claims in the complaint”; a recitation of facts intimating the “mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz-Craft Corp of Mich., Inc., 491 Fed.Appx. 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679.

         Finally, “[p]ro se complaints are held to less stringent standards than formal pleadings drafted by lawyers and therefore are liberally construed.” Olivares v. Michigan Worker's Comp. Agency, No. 18-2369, 2019 WL 2299250, at *2 (6th Cir. Apr. 16, 2019) (citing Williams v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (vacating dismissal of civil rights complaint and remanding for further proceedings)); see also Walker v. Miller, No. 18-3209, 2018 WL 7575709, at *1 (6th Cir. Oct. 17, 2018) (“But we hold pleadings filed by a pro se litigant ‘to less stringent standards than formal pleadings drafted by lawyers,' and [we] may not uphold the dismissal of' a pleading by a pro se litigant simply because we think the allegations unlikely.”) (quoting Thomas v. Eby, 481 F.3d 434, 437 (6th Cir. 2007)). However, “‘pro se plaintiffs are not automatically entitled to take every case to trial.'” Robinson v. Killips, No. 18-1485, 2019 WL 1931873, at *1 (6th Cir. Feb. 22, 2019) (quoting Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996)) (affirming in part and reversing in part dismissal of pro se complaint).

         B. Federal Rule of Civil Procedure 12(b)(5)

         The Aramark Employees also move to dismiss the claims against them pursuant to Federal Rule of Civil Procedure 12(b)(5) for failure to effect timely service of process under Federal Rule of Civil Procedure Rule 4(m). (ECF No. 46.) “Due process requires proper service of process for a court to have jurisdiction to adjudicate the rights of the parties.” O.J. Distrib. Inc. v. Hornell Brewing Co., 340 F.3d 345, 353 (6th Cir. 2003). Federal Rule of Civil Procedure 12(b)(5) provides that insufficient service of process is a “defense to a claim for relief in any pleading” that may be asserted by motion. Fed.R.Civ.P. 12(b)(5). Under Rule 4(c)(1), a plaintiff is responsible for serving a defendant with both the summons and comply within the time allowed by Rule 4(m). Fed.R.Civ.P. 4(c)(1). Rule 4(m) requires that a plaintiff serve defendants within 90 days of the filing of the complaint. Fed.R.Civ.P. 4(m). However, Rule 4(m) states that “if the plaintiff shows good cause for the failure [to timely effect service], the court must extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m). If the plaintiff has not shown good cause, the Court must dismiss the action without prejudice or direct that service be effected within a specified time. Id.

         IV. CCI AND PCI DEFENDANTS' MOTION TO DISMISS

         Defendants Timothy Shoop, C. Crockett Harris, Missy Roush, Mary Lawrence, and Justin Swanson the Interested Party, the State of Ohio, on Behalf of Defendant Stephen Ratcliff move to dismiss Plaintiff's claims. (ECF Nos. 36 and 37.) Plaintiff has filed a combined Opposition to these Motions and Motion to Dismiss Without Prejudice (ECF No. 56).[4]

         A. Claims Against Defendants Shoop, Crockett Harris, Roush, Lawrence, and Ratcliff

         In response to the CCI and PCI Defendants' Motions to Dismiss (ECF Nos. 36 and 37), Plaintiff moves to dismiss without prejudice Defendants Shoop, Ratcliff, Crockett Harris, Lawrence, and Roush. (ECF No. 56 at PAGEID # 669.) These named Defendants have not responded to Plaintiff's Motion. To the extent Plaintiff seeks to dismiss without prejudice Defendants Shoop, Ratcliff, Crockett Harris, Lawrence, and Roush, it is therefore RECOMMENDED that Plaintiff's motion (ECF No. 56) be GRANTED and that the Motions to Dismiss (ECF Nos. 36 and 37) as to these Defendants be DENIED AS MOOT.

         B. Claims Against Defendant Swanson

         Plaintiff's allegations in the Amended Complaint specifically against Defendant Swanson are as follows:

17) The Defendant Justin Swanson, in his supervisory position over all Hazardous/ Caustic/Toxic Chemicals and None Hazardous/Caustic/Toxic Chemicals entering the prison acted Deliberate Indifference in failing his duties to ensure all staff are properly trained on hazardous/caustic/toxic chemicals, this training all so include's [sic] the proper training of all inmates/prisoners that are given any chemical to clean with that enters the prison. The Defendant, Justin Swanson, failed his duties by not monitoring all hazardous/caustic/toxic chemicals entering the Institution by invoice as ordered by Aramark Correctional Services, Inc., at the Pickaway Correctional Institution. Defendant's Deliberate Indifference in failing to perform his duties ensuring the health and safety of plaintiff's explosure [sic] to the toxix [sic] chemical violating plaintiff's Eighth & Fourteenth Amendments resulting in cruel & unusual punishment entitling plaintiff to damages.
18) The Defendant Justin Swanson, failure directly resulted in the breach of security which allowed the Sysco Reliance HD Degreaser Supc 0616526 toxic chemical to be brought on prison grounds which plaintiff was exposed resulting in injuries of 1st/2nd and/or 3rd Degree Chemical Burns.

         (Am. Compl., ¶¶ 17-18; see also id. at ¶¶ 26-30 (asserting claims against all Defendants for deliberate indifference); ¶ 32 (asserting claims against all Defendants for violation of Plaintiff's equal protection rights); ¶ 33 (asserting claims against all Defendants for violation of Plaintiff's due process rights); ¶¶ 35-37 (asserting claims against all Defendants for failure to hire, train, instruct and/or discipline); ¶¶ 38-39 (asserting state claims of negligence against all Defendants); ¶¶ 40-45 (asserting against all Defendants claims under 29 C.F.R. §§ 1910.120, 1910.2200, et seq.); ¶¶ 46-49 (asserting claims for emotional distress against all Defendants).) These claims are addressed in turn.

         1. Claims for deliberate indifference

         Defendant Swanson contends that Plaintiff's claims against him must fail because they are based on Defendant Swanson's “supervisory position, ” constituting a claim of respondeat superior that is not actionable under Section 1983. (ECF No. 36 at PAGEID ## 515-18.) Defendant Swanson further contends that he was not deliberately indifferent to Plaintiff in violation of Plaintiff's rights under the Eighth Amendment to the United States Constitution. (Id. at PAGEID ## 519-20.) Plaintiff disagrees, responding with additional factual allegations. (See ECF No. 56.) Defendant Swanson has not replied to Plaintiff's opposition and new allegations.

         “[W]hen the pleadings are filed by pro se plaintiffs, the court may consider additional, supporting documents which either serve to elaborate on a complaint or amend the initial filing.” Tolliver v. Noble, 752 Fed.Appx. 254, 266, (6th Cir. 2018) (emphasis added) (citations omitted). As this Court has previously noted (ECF No. 72 at 4), Plaintiff previously has had opportunities to amend, and did, in fact, file an Amended Complaint. (See ECF Nos. 15, 21, 22.) Nevertheless, under the present circumstances of the present briefing only and in excess consideration of Plaintiff's pro se status, the Court will consider Plaintiff's additional factual allegations in his opposition brief (ECF No. 56) when considering Defendant Swanson's request to dismiss Plaintiff's claims against him.

         As a preliminary matter, the Court notes that Plaintiff brings his 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 § 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. 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 her 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). In addition, because Section 1983 is a method for vindicating federal rights, and is not itself a source of substantive rights, a plaintiff must first identify the specific constitutional right allegedly infringed in an action under Section 1983. Albright v. Oliver, 510 U.S. 266, 271 (1994).

         Here, Plaintiff alleges that Defendant Swanson was deliberately indifferent in violation of Plaintiff's Eighth Amendment rights. It is well established that “[t]he Eighth Amendment forbids prison officials from unnecessarily and wantonly inflicting pain on an inmate by acting with deliberate indifference toward [his] serious medical needs.” Jones v. Muskegon Cnty., 625 F.3d 935, 941 (6th Cir. 2010) (internal quotations and citations omitted). “To show deliberate indifference to workplace safety, prisoners must show that prison officials ‘knowingly compel[led them] to perform physical labor which is beyond their strength, or which constitutes a danger to their lives or health, or which is unduly painful.'” Mustin v. Franklin, No. 3:18 CV 2281, 2019 WL 1428340, at *2 (N.D. Ohio Mar. 29, 2019) (quoting Jones v. Michigan, 698 F.Supp.2d 905, 914 (E.D. Mich. 2010) (alteration in original)). A claim for deliberate indifference “has both objective and subjective components.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011). To satisfy the first prong, “the deprivation alleged must be, objectively, ‘sufficiently serious[.]'” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted). Notably, only “extreme deprivations” will satisfy the ...


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