UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Herman Harris, Jr.,

Plaintiff,

V. Case No. 2:17-cv-872

Aramark Incorporation, et al., Judge Michaei H. Watson

Defendants. Magistrate Judge Deavers

OPINION AND ORDER

Plaintiff Herman Harris Jr. ("Plaintiff'), proceeding without the assistance of

counsel, brings this action under 42 U.S.C. § 1983 against Aramark

Incorporation, Aramark Correctional Services, Inc., Deputy Warden of Operations

at Chillicothe Correctional Institution Timothy Shoop, and employees at Pickaway

Correctional Institution ("PCI") (together with Defendant Shoop, "the Individual

Defendants"). Upon initial screening, pursuant to Federal Rule of Civil Procedure

72(b), 28 U.S.C. § 636(b), and 28 U.S.C. §§ 1915(e)(2) and 1915A, Magistrate

Judge Deavers issued a Report and Recommendation ("R&R") recommending

the Court dismiss Plaintiffs § 1983 claims for monetary damages against the

individual Defendants in their official capacities,^ Plaintiffsstate law negligence

claim against the individuai Defendants, and any claims based solely on an

Individual Defendant's supervisory role. R&R, ECF No. 23. Magistrate Judge

Plaintiffdoes not object to this recommendation; therefore, the Court adopts this

recommendation without conducting a separate de novo review.
Deavers further recommended that Plaintiff be permitted to proceed on his

remaining ciaims. Id.

Piaintiff has timeiy objected. Obj., ECF No. 24. Piaintiff aiso moves this

Court for ieave to amend his fiiing dated June 26, 2018, entitied "Request for

Judiciai Notice," detailing his purported iack of medicai treatment. Mot. to

Correct, ECF No. 28. Plaintiffs motion for ieave to amend his notice is

GRANTED. Upon de novo review, and for the reasons set forth beiow, PiaintifTs

objections to the R&Rare OVERRULED, and the Court hereby AFFIRMS and

ADOPTS the R&R.

I. BACKGROUND

The Magistrate Judge sets forth the pertinent facts of this case in the R&R.

See R&R 2, ECF No. 23. Piaintiff did not contest the Magistrate Judge's

summary of the facts, nor did he inciude a summary of the facts in his objections

to the R&R. Accordingiy, this Court adopts the R&R's facts in fuii.

11. STANDARD OF REVIEW

Under Ruie 72(b), the Court must determine de novo any part of the

Magistrate Judge's disposition to which Piaintiff has properly objected. Fed. R.

Civ. P. 72(b)(3). The Court may accept, reject, or modify the R&R, receive

further evidence, or return the matter to the Magistrate Judge with instructions.

Id. in conducting an initiai screen of PiaintifTs Compiaint, the Court recognizes

that Piaintiff is proceeding without the benefit of an attorney. A pro se iitigant's

pieadings must be, and in this instance are, construed iiberaiiy and heid to iess

Case No. 2:17-cv-872 Page 2 of 7
stringent standards than formal pleadings drafted by attorneys. Haines v.

Kerner, 404 U.S. 519, 520-21 (1972).

III. ANALYSIS

Plaintiff raises two objections to the R&R. First, he contends that the

Magistrate Judge erred In recommending dismissal of his state-law negligence

claim against the Individual Defendants. To support this objection, Plaintiff

argues that employees of Aramark Corporation and Aramark Correctional

Services, Inc., operating under contract within Ohio prisons, are not entitled to

qualified Immunity. He further asserts that he has alleged sufficient facts to

support his state-law negligence claim.

Under Ohio law, state officers and employees are generally Immune from

suit. See, e.g., McCormick v. Miami Univ., 693 F.Sd 654, 664 (6th CIr. 2012)

(Interpreting Ohio law); Haynes v. Marshaii, 887 F.2d 700, 705 (6th CIr. 1989)

(same); James v. Tunneil, No. 1:09-cv-00839, 2010 WL2519654, at *4 (S.D.

Ohio June 16, 2010) (same). Ohio Revised Code § 9.86 provides In relevant

part;

[N]o officer or employee shall be liable In any civil action that arises

under the law of this state for damage or Injury caused In the

performance of his duties, unless the officer's or employee's actions

were manifestly outside the scope of his employment or official

responsibilities, or unless the officer or employee acted with malicious

purpose. In bad faith, or In a wanton or reckless manner.

Ohio Rev. Code § 9.86. Ohio Revised Code § 2743.02(F) further provides In

relevant part:

Case No. 2:17-cv-872 Page 3 of 7
A civil action against an officer or employee ... that alleges that the

officer's or employee's conduct was manifestly outside the scope of

the officer's or employee's employment or official responsibilities, or

that the officer or employee acted with malicious purpose, in bad faith,

or in a wanton or reckless manner shall first be filed against the state

in the court of claims, which has exclusive, original jurisdiction to

determine, initiaiiy, whether the officer or employee is entitled to

personal immunity under section 9.86 of the Revised Code.

Ohio Rev. Code § 2743.02(F). The Sixth Circuit has construed these

provisions together to mean:

Ohio law requires that, as a condition precedent to asserting a cause

of action against a state employee in his individual capacity, the Court

of Claims must first determine that the employee is not entitled to the

immunity provided for in Revised Code section 9.86. Prior to that

condition being satisfied, then, there is no claim under Ohio law upon

which relief may be granted againststate employees in their individual

capacities.

Haynes, 887 F.2d at 705. in other words, "state employees may not be sued

unless and until it has been determined by the Court of Claims that they are not

entitled to immunity." Id. at 704.

Although there is some divergence in the case law as to whether Aramark

employees are considered "state actors" for purposes of § 1983, generally courts

in the Sixth Circuit "have assumed, for purposes of screening, that Aramark is a

state actor." Mills v. Aramark Corp., No. 1:15-cv-610, 2015 WL 7820872, at *1

n.2 (S.D. Ohio Nov. 10, 2015) ((quoting Dotson v. Shelby Cty., No. 13-2766-JDTtmp, 2014 WL 3530820, at *13 (W.D. Tenn. July 15, 2014) (collecting cases)),

adopted and affirmed in Mills v. Aramark Corp., No. 1-15-cv-610 (S.D. Ohio Dec.

3,2015).

Case No. 2:17-cv-872 Page 4 of 7
Here, as the Magistrate Judge correctly observed, there is no evidence

that an Ohio Court of Claims has determined that the individual Defendants are

not entitled to Immunity. Thus, even if Plaintiff has alleged sufficient facts, as he

contends, this Court lacks jurisdiction to hear his state-law negligence claim

unless and until an immunity determination has been made by the Court of

Claims. See McCormick, 693 F.3d at 664; Haynes, 887 F.2d at 705. For these

reasons, Plaintiffs first objection is OVERRULED.

Next, Plaintiff objects to the Magistrate Judge's recommendation that his

federal civil rights claims brought under § 1963 based solely on a Defendant's

supervisory role be dismissed. He argues that the PCI security staff "breached

security" and failed to carry out their duties to screen and inspect all shipments

entering the institution, which allowed delivery of "a highly toxic chemical

cleaning product" that ultimately resulted in Plaintiffs alleged injuries—first- and

second-degree chemicai burns. Obj. 2, ECF No. 24. In support, Plaintiff

provides language from the Ohio Department of Rehabilitation and Corrections'

("ODRC") "Hazardous Communications and Chemical Control Guidelines," which

he claims applies to all ODRC employees and contractors, including Aramark

Incorporation, Aramark Correctional Services, Inc., and PCI employees. Id. at 3.

Plaintiff contends that the Guidelines "createQ accountability and supervisory

liability." Id. at 5. Further, Plaintiffargues that violations of his Eighth and

Fourteenth Amendment rights resulted from "supervisors' failure to train or

supervise," citing the Seventh Circuit's decision in Goka v. Bobbitt, 862 F.2d 646,

Case No. 2:17-cv-872 Page 5 of 7
652 (7th Cir. 1988), for the proposition that supervisors can be held liable for

knowingly failing to enforce a prison policy.^ Id.

The crux of Plaintiffs argument—^that supervisors can, in some instances,

be held liable in their individual capacity under § 1983—is not wholly incorrect.

His objection fails, however, because the R&R correctly concluded that Plaintiffs

§ 1983 claims brought against the Individual Defendants merely because of their

role as a manager or supervisor fail as a matter of law. Peatross v. City of

Memphis, 818 F.3d 233, 241 (6th Cir. 2016) ("[A] supervisor cannot be held liable

simply because he or she was charged with overseeing a subordinate who

violated the constitutional rights of another."). Indeed, because supervisors "are

often one step or more removed from the actual conduct of their subordinates,"

the law requires "more than an attenuated connection between the injury and the

supervisor's alleged wrongful conduct." Id. So, "[wjhile an individual supervisor

may still be held liable in his or her individual capacity [under § 1983]... the

[plaintiff] must point to a specific action of each individualsupervisor to defeat a

qualified immunity claim." Phillips v. Roane Cty., Tenn., 534 F.3d 531, 544 (6th

Cir. 2008). "At a minimum a plaintiff must show that the official at least implicitly

authorized, approved, or knowingly acquiesced in the unconstitutional conduct of

the offending officers." Id. at 543 (quoting Shehee v. Luttrell, 199 F.3d 295, 300

2 In his objections to the R&R, ECF No. 24, Plaintiff also asserts that the Occupational

Safety and Health Act ("OSHA") should apply to his case. But it does not appear that

Plaintiff has alleged an OSHA violation in his Amended Complaint, see ECF No. 22, and

a new claim cannot be added via objections to an R&R.

Case No. 2:17-cv-872 Page 6 of 7
(6th Cir. 1999)). In this case, the R&R correctly concluded that Plaintiffs

allegations that the Individual Defendants are liable merely because they were

"acting In a supervisory position" are insufficient to state a claim for relief.

Therefore, Plaintiffs second objection is OVERRULED.

Plaintiff has not asserted any other objections; thus, the Court ADOPTS

the remainder of the R&R.

For the reasons set forth above. Plaintiffs objections are OVERRULED.

The R&R is ADOPTED and AFFIRMED. R&R, EOF No. 23. Moreover,

Plaintiffs motion to correct the filing is GRANTED. EOF No. 28. Plaintiff is

permitted to proceed with his remaining claims.

IT IS SO ORDERED.

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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