Deborah S. Hunt, Clerk

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

ORDER

Before: GILMAN and DONALD, Circuit Judges; HOOD, District Judge.

Robert Lee Boles, Jr., a Michigan prisoner proceeding pro se, appeals a district court judgment granting summary judgment in favor of the defendants in this civil rights case filed under 42 U.S.C. § 1983. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

Boles, who is housed at the Lakeland Correctional Facility (LCF), sued Aramark Correctional Services LLC (Aramark), several employees of Aramark who were food-service directors at LCF, a LCF food-service line supervisor, and three LCF food-service line workers. Boles alleged that these defendants denied him his Eighth Amendment right to be free from cruel and unusual punishment when they served him food on stained and dirty food trays, refused to comply with his prescribed low-sodium diet, and acted in retaliation by serving him a hamburger without a bun after he filed grievances about his food. The defendants filed a motion for summary judgment, arguing that Boles had failed to exhaust his administrative remedies through Michigan's prison grievance procedure regarding some of the defendants, that Aramark was not a State actor for purposes of liability under § 1983, and that, in any event, he failed to establish a constitutional violation.

The matter was referred to a magistrate judge, who determined that Boles had exhausted his remedies regarding the dirty-tray complaint and the retaliation claim alleged against defendants Ashley Watts, Donna Finley, Tonya Lamp, and Frank Hand. After considering Boles's objections, the district court adopted the magistrate judge's report and granted summary judgment in favor of the defendants. During the litigation in the district court, Boles had filed motions for costs and sanctions, to compel answers, and to determine the sufficiency of objections and responses. A magistrate judge denied these three motions, and the district court overruled Boles's objections to that decision. Boles appealed.

Boles now presents four arguments: (1) the district court erroneously granted summary judgment to defendants Aramark, Kelly Murphy, Diane McConkey, Terry Miller, Justin Phelps, and Philipp Melon based on his failure to exhaust his remedies regarding these defendants; (2) the court erroneously granted summary judgment regarding his Eighth Amendment claim that the defendants failed to provide him an appropriate low-sodium diet; (3) the court erroneously granted summary judgment in favor of Aramark because the evidence supported his claims against Aramark's employees and thus established a "custom or policy" of Aramark regarding the deprivation of his constitutional rights; and (4) the court erroneously denied his motion for costs and his discovery motions.

Boles does not challenge the district court's determinations that his dirty-tray claim, without more, was insufficient to establish an Eighth Amendment conditions-of-confinement claim and that he failed to establish a claim of retaliation. Therefore, Boles has abandoned these claims, and we will not consider them. See Hih v. Lynch, 812 F.3d 551, 556 (6th Cir. 2016).

We review de novo the district court's grant of summary judgment. Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 361 (6th Cir. 2010). Summary judgment is proper where "there is no genuine dispute as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Defoe ex rel Defoe v. Spiva, 625 F.3d 324, 330 (6th Cir. 2010). The moving party bears the initial burden of establishing an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The party opposing the motion for summary judgment "may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal citation marks omitted).

Failure to Exhaust

The district court determined that Boles had exhausted his claims only against defendant Hand, a food-service line supervisor for Aramark, and food-service line workers Lamp, Watts and Finley, and the court denied those claims on the merits. The court denied Boles's claims against the remaining defendants because Boles failed to exhaust his administrative remedies through the prison's grievance process.

We review de novo a district court's dismissal for failure to exhaust administrative remedies. Risher v. Lappin, 639 F.3d 236, 239 (6th Cir. 2011). Prisoners must properly exhaust their available remedies before bringing suit in federal court by completing the review process in accordance with the applicable procedural rules. Woodford v. Ngo, 548 U.S. 81, 93 (2006). This requirement is not satisfied if the prisoner files a defective grievance that fails to meet the prison's grievance policy. Risher, 639 F.3d at 240; see also Scott v. Ambani, 577 F.3d 642, 647 (6th Cir. 2009). To properly exhaust remedies in Michigan, "a grievance must identify each defendant eventually sued" and allege misconduct by each defendant. Bell v. Konteh, 450 F.3d 651, 653-54 (6th Cir. 2006); see also Mich. Dep't of Corr. Policy Directive 03.02.130 (requiring Michigan prison grievances to provide the dates, time, places, and names of all those involved). The allegations in a grievance must give "sufficient notice of the matter being grieved." Maxwell v. Corr. Med. Servs., Inc., 538 F. App'x 682, 688 (6th Cir. 2013) (citing Reed-Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010)).

Boles failed to list the five food-service directors in his grievance about his low-sodium diet and mentioned Aramark only with reference to its alleged "ongoing problems" providing inmates with appropriate diet-restrictive food. Boles relies on his reference to "all employees" of Aramark and argues that, under Bell and Mattox v. Edelman, 851 F.3d 583, 586 (6th Cir. 2017), he presented sufficient facts and details to exhaust his complaints against Aramark and the five food-service directors. He also argues that, in any event, his claims against these defendants were erroneously dismissed as unexhausted after the prison officials had considered his claims on the merits.

Although it may be true that Boles was not required to name each individual defendant in his grievance to satisfy the exhaustion requirements, his relevant grievance did not describe how the food supervisors were involved in the alleged decision to deny him a low-sodium diet, and it failed to provide these defendants sufficient notice to respond to the specific allegations against them that he later presented in his § 1983 complaint. As the district court noted, none of the food-service directors were named in Boles's low-sodium-diet grievance, and the record revealed that four of them were not even in a position to refuse this diet at the time in question because they had either resigned before the relevant period of June 1 through June 5, 2014, or had not yet assumed their supervisory positions. Contrary to Boles's argument, he could not exhaust his claim against defendant Miller regarding the low-sodium diet by referring to Miller only in his first grievance relating to the dirty food trays. Regarding Boles's failure to exhaust his claims against Aramark, the district court properly determined that he failed to specifically name Aramark in the relevant grievance and, for the reasons further described below, it could not be liable under § 1983 for the actions of its employees.

Eighth Amendment Claim

Boles claimed that Hand and three food-service line workers disregarded his health and safety by failing to serve him food complying with his prescribed low-sodium diet. The Eighth Amendment prohibits any punishment that violates civilized standards of decency or causes unnecessary and wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). To succeed with this § 1983 claim, Boles had the burden of showing that the defendants acted with "deliberate indifference" to his health and safety. Farmer v. Brennan, 511 U.S. 825, 828-29 (1994). "To raise a cognizable constitutional claim for deliberate indifference to an inmate's safety, an inmate must make a two-part showing: (1) the alleged mistreatment was objectively serious; and (2) the defendant[s] subjectively ignored the risk to the inmate's safety." Bishop v. Hackel, 636 F.3d 757, 766 (6th Cir. 2011) (citing Farmer, 511 U.S. at 834).

"An official is deliberately indifferent if he or she 'knows of and disregards an excessive risk to inmate health or safety.'" Id. at 766-67 (quoting Farmer, 511 U.S. at 837). This is a higher standard than proving mere negligence, see Farmer, 511 U.S. at 835, and required Boles to show that the defendants "subjectively perceived facts from which to infer a substantial risk to the prisoner," that they "did in fact draw the inference," and that they "then disregarded that risk." See Richko v. Wayne Cty., 819 F.3d 907, 915-16 (6th Cir. 2016) (quoting Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th Cir. 2014)).

When Boles informed Hand about the non-compliant food he had been served, Hand brought the problem to his supervisor's attention and assured Boles that the off-diet items would no longer be included on his food tray. When these items were still included on two more trays, Boles filed a grievance, to which Hand responded that tomatoes should be removed from Boles's food trays and that his food should not come from the "mainline" menu. Hand also indicated that Aramark had failed to supply the proper food for his diet.

Lamp attempted to accommodate Boles's diet restrictions on one occasion by substituting a peanut butter and jelly sandwich in place of a Sloppy Joe. She also provided substitutes on June 18, 2014, during his lunch and dinner. However, on June 19, 2014, when he returned a pizza meal because it did not meet his dietary restrictions, Lamp informed Boles that she had been instructed by Hand to inform Boles to eat what he was served on the diet tray. At Boles's request, Lamp immediately summoned Hand to speak with Boles, but Hand refused to provide him with a substitute meal. That same evening, Boles was served tomatoes on his spaghetti meal, and he alleged in his complaint that both Lamp and Finley refused to hear his complaints about this meal or to provide a substitute meal. On June 20, 2014, Boles allegedly received a meal with cabbage, red peppers, and tomatoes, and Lamp denied his request for a substitute for this meal as well.

After these incidents, Boles informed both the prison medical personnel and the prison dietician of his dilemma and, on November 20, 2014, the dietician "modified" his diet restriction to exclude foods that would exacerbate acid reflux disease. Thereafter, Boles's diet was modified, and he experienced no further issues regarding high-acidity meals. However, Boles approached Melton in March 2015 about his failure to receive low-sodium trays, and Melton, a new food-service director at LCF at the time, informed LCF's Health Care Committee and Health Unit Manager of the problem. Melton resigned on June 8, 2015.

The district court determined that Boles's claims met the objective component of presenting a "serious" condition if his diet restrictions were not met. See Farmer, 511 U.S. at 834. However, the court found that Boles failed to meet the subjective component: that the defendants ignored the serious risk to Boles's safety. Id. This is not a case where food and nutrition were withheld entirely, which can be a violation of the Eighth Amendment. See Cunningham v. Jones, 567 F.2d 653, 656 (6th Cir. 1977). Significantly, Boles failed to allege or establish that the defendants have been "deliberately indifferent" to his dietary needs. As the defendants argue, Boles never established that Hand or the three food-service line workers were aware of Boles's acid-reflux condition until the dietician modified his restrictions in November 2014 and identified this condition. Boles admits that after acid reflux was added as a restrictive condition, his food trays were modified accordingly.

In addition, Boles failed to allege or show that Hand and the food-service line workers, although aware of Boles's low-sodium-diet restriction, were aware of any serious consequences of their occasional failure to comply with that restriction. Although Boles's claims might show that the defendants were negligent in attending to his dietary restrictions, he failed to allege how Hand or the line workers perceived facts from which they could infer a substantial risk to him, drew this inference from the facts, and nevertheless disregarded the risk. See Richko, 819 F.3d at 915-16. Thus, Boles failed to state a claim that the defendants were deliberately indifferent to his health and safety. See Farmer, 511 U.S. at 828-29. As a result, the district court properly granted summary judgment in favor of these four defendants.

Claim Against Aramark

The district court also rejected Boles's argument that, by naming Aramark, he had implicitly incorporated the actions of all of its employees, including the food-service directors, Hand, and the three food-service line workers. Boles argues that Aramark is liable for his failure to receive a low-sodium diet because its employees violated his Eighth Amendment right to comply with this diet restriction. Even if Boles had exhausted his remedies against Aramark, the company could not be held liable based on respondeat superior absent a finding that it "encouraged the specific incident of misconduct or in some other way directly participated in it." Coley v. Lucas Cty., 799 F.3d 530, 542 (6th Cir. 2015) (quoting Taylor v. Mich. Dep't of Corr., 69 F.3d 76, 81 (6th Cir. 1995)).

For the reasons above, Boles failed to establish that any Aramark employee violated his constitutional rights, and Aramark thus cannot be held liable for a violation that does not exist. In addition, Boles presented no evidence to show that Aramark encouraged the alleged misconduct or actively participated in withholding proper low-sodium meals from inmates. Thus, the district court properly granted summary judgment in favor of Aramark.

Motion for Costs and Discovery Motions

Boles argues that the district court erroneously denied his motion for costs and his two discovery motions. Boles requested costs under Federal Rule of Civil Procedure 37 after the magistrate judge granted in part his motion to compel discovery. See Fed. R. Civ. P. 37(a)(5). The magistrate judge determined that the defendants had misinterpreted its case-management order regarding the permitted number of interrogatories, requests for admissions, and requests for the production of documents. As a result, the magistrate judge issued a second case-management order clarifying these limits for each opposing party. The magistrate judge denied Boles's subsequent motion for costs under Rule 37(a)(5) because it was unjust under the circumstances, finding that the defendants opposed Boles's requests based on their mistaken interpretation of the court's case-management order and that their interpretation had not been unreasonable. See Fed. R. Civ. P. 37(a)(5)(iii).

Pursuant to Rule 37, a party may move for an order compelling discovery, and if a party fails to comply with the court's order, sanctions may be imposed. Fed. R. Civ. P. 37(a), (b). We review a district court's decision on whether to impose sanctions under Rule 37 under the abuse-of-discretion standard. McCarthy v. Ameritch Publ'g, Inc., 763 F.3d 488, 490-91 (6th Cir. 2014). "An abuse of discretion occurs when (1) the district court's decision is based on an erroneous conclusion of law, (2) the district court's findings are clearly erroneous, or (3) the district court's decision is clearly unreasonable, arbitrary or fanciful." Id. at 491 (quoting Beil v. Lakewood Eng'g & Mfg. Co., 15 F.3d 546, 551 (6th Cir. 1994)). The magistrate judge's denial of Boles's motion for costs was not based on an erroneous conclusion of law or fact, or clearly unreasonable, arbitrary, or fanciful. Therefore, the magistrate judge did not abuse her discretion in resolving this motion.

The magistrate judge denied Boles's "Motion to Determine Sufficiency of Objections" because the discovery requests to which the defendants had objected were "poorly crafted" and "vague and ambiguous." The district court noted that the defendants attempted to respond to Boles's discovery requests, but it agreed with the magistrate judge that the requests were "rife with ambiguous terms." For the reasons stated in its order, the district court did not abuse its discretion when it denied this motion. See United States v. One Tract of Real Prop. Together with All Bldgs., Improvements, Appurtenances & Fixtures, 95 F.3d 422, 427 (6th Cir. 1996).

Boles also challenges the district court's denial of his motion to compel answers to his third interrogatories and produce documents, pursuant to Federal Rules of Civil Procedure 33 and 34. Under Rule 33, "any ground not stated in a timely objection [to a request] is waived unless the court, for good cause, excuses the failure." Fed. R. Civ. P. 33(b)(4), see 34(b)(2)(C). The district court appropriately applied this same standard to the defendants' objections to Boles's Rule 34 request for the production of documents. See Brown v. Warden Ross Corr. Inst., No. 2:10-cv-822, 2011 WL 1877706, at *2 (S.D. Ohio May 16, 2011).

The magistrate judge determined that the defendants had not waived their right to object to Boles's request because the requests were unreasonably broad in scope and not relevant to Boles's claims. See Fed. R. Civ. P. 26(b). Upon review of Boles's objections, the district court agreed with the magistrate judge that the defendants had not waived their right to object to the discovery requests because they had timely responded to the magistrate judge's show cause order. The district court also determined that the magistrate judge had not clearly erred when she found that Boles's discovery requests were unreasonably broad, unduly burdensome, and irrelevant to his claims.

On appeal, Boles raises general challenges to the district court's findings, but presents no specific reasons why the court abused its discretion in denying his discovery motions. The district court therefore did not abuse its discretion when it denied these motions. See In re Bayer Healthcare & Merial Ltd. Flea Control Prod. Mktg. & Sales Practices Litig., 752 F.3d 1065, 1074 (6th Cir. 2014) ("[D]istrict courts have discretion to limit the scope of discovery where the information sought is overly broad or would prove unduly burdensome to produce." (quoting Info-Hold, Inc. v. Sound Merch., Inc., 538 F.3d 448, 457 (6th Cir. 2008))).

Accordingly, we AFFIRM the district court's judgment.

ENTERED BY ORDER OF THE COURT

/s/_________

Deborah S. Hunt, Clerk Deborah S. Hunt Clerk Mr. Robert Lee Boles Jr.
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036 Ms. Josephine A. DeLorenzo
Plunkett Cooney
38505 Woodward Avenue
Suite 100
Bloomfield Hills, MI 48304 Re: Case No. 17-1919, Robert Boles, Jr. v. Aramark Correctional Services, et al
Originating Case No. : 1:15-cv-00721 Dear Counsel and Mr. Boles:

The Court issued the enclosed Order today in this case.

Sincerely yours,

s/Leon T. Korotko

Case Manager

Direct Dial No. 513-564-7014 cc: Mr. Thomas Dorwin Enclosure Mandate to issue