Opinion
CIVIL NO. 1:12-CV-0629
09-06-2012
ELMER RODRIGUEZ, Plaintiff v. ELIZABETH NICHOLOS and ARAMARK COMPANY, Defendants
(Judge Rambo)
(Magistrate Judge Smyser)
MEMORANDUM
Before the court is a May 24, 2012 report of the magistrate judge (doc. 11) to whom this matter was referred in which he recommends that the amended complaint be dismissed for failure to state a cause of action. The amended complaint was filed pursuant to 42 U.S.C. § 1983 alleging a violation of the Eighth Amendment of the United States Constitution. The amended complaint was addressed by the magistrate judge pursuant to 28 U.S.C. § 1915(e)(2). After being given an extension of time to file objections to the report and recommendation, Plaintiff filed a document entitled "Opposition Objection" and, attached thereto, an amended complaint (doc. 17). This document will be deemed to be objections to the report and recommendation.
The objection is a reiteration of the first amended complaint. Plaintiff claims that Warden Nicholos and Aramark Company were deliberately indifferent by inflicting cruel and unusual punishment and pain when they served a food tray on which is alleged to have been a mouse tail. Plaintiff has alleged a single instance of finding an alleged contaminant on his food tray. He has not alleged that this was part of a pattern, nor that it was an act done with deliberate indifference to the plaintiff's health and safety.
Plaintiff has further not shown that Aramark, the food supplier, had a custom or policy of supplying or serving contaminated food. The fact that the Warden directed a plan of action be taken by Aramark based on Plaintiff's complaint (see doc. 17, Ex. C) does not establish that an Eighth Amendment violation occurred. Plaintiff's claims of deliberate indifference are conclusory and are not supported by the facts. An appropriate order will be issued.
Sylvia H. Rambo
United States District Judge
ELMER RODRIGUEZ, Plaintiff
v.
ELIZABETH NICHOLOS and ARAMARK COMPANY, Defendants
CIVIL NO. 1:12-CV-0629
(Judge Rambo)
(Magistrate Judge Smyser)
ORDER
AND NOW, this 6th day of September, 2012, IT IS HEREBY ORDERED THAT:
1) Document 17 is deemed to be Plaintiff's objections to the report and recommendation of the magistrate judge.
2) The court adopts the report and recommendation of the magistrate judge (doc. 11).
3) The amended complaint is dismissed for failure to state a claim.
4) It is certified that any appeal from this order will be deemed frivolous and not taken in good faith.
5) The Clerk of Court shall close the file.
Sylvia H. Rambo
United States District Judge