The opinion of the court was delivered by: Judge Holschuh
MEMORANDUM OPINION & ORDER
This matter is currently before the Court on Plaintiff Dwight Freeman's objections to Magistrate Judge Abel's August 9, 2006 Report and Recommendation (Record at 31), and on Plaintiff's motion to change venue (Record at 28). As required by 28 U.S.C. § 636(b), the Court has made a de novo review of those portions of the Report and Recommendation to which Plaintiff has specifically objected. For the reasons set forth below, the Court sustains Plaintiff's objections in part and overrules them in part. The Court denies Plaintiff's motion to change venue.
I. Background and Procedural History
Plaintiff is currently incarcerated at the Southern Ohio Correctional Facility ("SOCF"). On December 2, 2005, he filed a complaint stemming from two incidents that took place in June of 2005 when he was an inmate at the Mansfield Correctional Institution ("MANCI"). Count I of the complaint alleges that on June 17, 2005, Correctional Officers Ross and Hicks engaged in an excessive use of force while moving him from one cell to another. According to Plaintiff, they threw him on the bed and placed him in leg irons. Then Officer Ross, without provocation or cause, broke Plaintiff's left hand. He claims that Nurse Diane Burson and Nurse Administrator Alice Cain failed to provide him with medical treatment and were deliberately indifferent to his serious medical needs. Plaintiff further alleges that Warden Margaret Bradshaw, Chief Inspector Cheryl Jergenson, Institutional Inspector Sharon Berry, and Reginald Wilkinson, Director of the Ohio Department of Rehabilitation and Corrections, were negligent and violated federal and state law by failing to provide him with proper medical care.*fn1
Count II of the complaint alleges that on June 20, 2005, following an altercation with a fellow inmate, Plaintiff was beaten by Correctional Officers Windom, Hicks, Ross, and Black at the direction of shift supervisors Captain Scott and Lieutenant Gilbert. Plaintiff alleges that Nurse Cain was again deliberately indifferent to his serious medical needs. Three days later, after Plaintiff was transferred to SOCF, he complained about his injuries to Nurse Administrator Mona Parks. He alleges that Parks was also deliberately indifferent to his serious medical needs.
Plaintiff seeks relief under 42 U.S.C. § 1983 for violations of his Fourth, Fifth, Eighth and Fourteenth Amendment rights. He also brings state law claims of negligence, dereliction of duty under Ohio Revised Code § 2921.44, and assault and battery. Defendants are sued in their official and individual capacities. Plaintiff contends that Bradshaw, Jergenson, Berry and Wilkinson knew of the vicious propensities of the other defendants but took no steps to properly train them, supervise them, or discipline them. Plaintiff alleges that Wilkinson ratified the excessive use of force by failing to report the abuse to the prosecutor, and failed to establish a meaningful system for dealing with reports of misconduct by correctional officers. He further contends that Wilkinson is liable under the doctrine of respondeat superior.
Magistrate Judge Abel issued an Initial Screening Report recommending that Plaintiff's complaint be dismissed without prejudice since Plaintiff had failed to establish that he had exhausted his administrative remedies as required by 28 U.S.C. § 1997e(a). Plaintiff filed an objection, attaching documentation of the grievances he had filed and the outcomes of those grievances. The Court sustained Plaintiff's objection.
Defendants then filed a motion for judgment on the pleadings. Citing Jones Bey v. Johnson, 407 F.3d 801, 807 (6th Cir. 2005), they argued that because Plaintiff had not exhausted his administrative remedies with respect to all claims against all defendants, his complaint must be dismissed in its entirety. According to Defendants, Plaintiff failed to fully exhaust his administrative remedies with respect to his claims that Parks, Cain, and Burson had conspired to cover up an excessive use of force, and his claims that Parks and Cain had failed to provide him with needed medical care. Defendants further argued that the § 1983 claims against Wilkinson must be dismissed because that statute does not provide for respondeat superior liability. Finally, Defendants argued that the Court lacked jurisdiction over Plaintiff's state law claims of assault, battery, negligence, and dereliction of duty, brought against them in their individual capacities.
Plaintiff filed a memorandum in opposition to Defendants' motion for judgment on the pleadings, arguing that: (1) he had, in fact, fully exhausted his administrative remedies with respect to Parks, Burson and Cain; (2) Wilkinson is liable under § 1983 for authorizing, tolerating and ratifying Defendants' conduct; and (3) Defendants are not immune from liability on the state law claims since they acted maliciously, in bad faith, and in a wanton and reckless manner.
On August 9, 2006, Magistrate Judge Abel issued a Report and Recommendation. Relying on the "total exhaustion" rule set forth in Jones Bey, he recommended that the Court grant Defendants' motion for judgment on the pleadings based on Plaintiff's failure to exhaust administrative remedies. He found that Plaintiff had not exhausted his administrative remedies with respect to claims against Wilkinson, Bradshaw, Jergenson, Berry, or Cain since they were not named in any of Plaintiff's grievances.
Plaintiff has filed objections to the Report and Recommendation, arguing that Jones Bey's "total exhaustion" rule is not the law of this circuit. He also contends that because there is no mechanism for filing a grievance against prison officials Berry, Jergenson, Bradshaw or Wilkinson, no exhaustion is required with respect to his claims against them. He further argues that he did exhaust his administrative remedies with respect to Cain and Parks. Defendants have filed a response to Plaintiff's objections.
II. Motion for Judgment on the ...