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Royster v. Mohr

United States District Court, Sixth Circuit

May 31, 2013

JAMES JEROME ROYSTER, Plaintiff,
v.
GARY MOHR, et al. Defendants.

ORDER

PETER C. ECONOMUS, District Judge.

This matter is before the Court for consideration of Plaintiff's objections to the United States Magistrate Judge's March 6, 2013 Report and Recommendation (Dkt. 26). Having reviewed the record de novo, the Court finds for the reasons set out below that the objections to the Report and Recommendation are without merit. Plaintiff's objections are OVERRULED and the Report and Recommendation is ADOPTED. The Court also DENIES Plaintiff's third Motion to Appoint Counsel (Dkt. 32).

I.

When objections are received to a Magistrate Judge's Report and Recommendation on a dispositive matter, the assigned District Judge "must determine de novo any portion of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b). After review, the District Judge "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id .; see also 28 U.S.C. § 636(b)(1). General objections are insufficient to preserve any issues for review; "[a] general objection to the entirety of the magistrate's report has the same effects as would a failure to object." Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991).

II.

Plaintiff James Jerome Royster, a state prisoner confined at the Chillicothe Correctional Institution ("CCI"), filed this action against four Ohio Department of Rehabilitation and Correction ("ODRC") employees in their individual and official capacities. Defendants are Director Gary Mohr, Warden Norm Robinson, Health Care Administrator Alice Ault, and physician Dr. Williams. Plaintiff asserted an Eighth Amendment claim under 42 U.S.C. § 1983, a claim under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12102(2), and a medical malpractice and/or negligence claim based on state law.

In the Report and Recommendation, the Magistrate Judge addressed the motion for judgment on the pleadings filed by Defendants Mohr, Robinson, and Ault. In a footnote to their motion, those Defendants argue that Defendant Williams was never properly served and should be dismissed from the case. The Report and Recommendation concluded that Plaintiff failed to serve Defendant Williams, but recommended that Plaintiff be given a twenty-eight day extension of time to serve him.

The Report and Recommendation recommended that the motion for judgment on the pleadings be granted as to the remaining three Defendants (Mohr, Robinson, and Ault). Specifically, the Report and Recommendation concluded that the Eleventh Amendment barred the section 1983 claims against those Defendants in their official capacities (and therefore that the Court had no subject-matter jurisdiction over those claims), that Plaintiff failed to state a claim as to the section 1983 claims against them in their individual capacities, that Plaintiff failed to state a claim against them in either their official or individual capacities under the ADA, and that the Court does not have jurisdiction over Plaintiff's state law claims at present.

III.

Plaintiff has objected to the Report and Recommendation on two grounds. First, he contends that Defendants Mohr, Robinson, and Ault had to file a Rule 12(b) motion to dismiss before answering the complaint and that by failing to do so, they waived their right to assert affirmative defenses in a Rule 12(c) motion for judgment on the pleadings. Second, he argues that the Report and Recommendation denied him due process by failing to consider requests for appointment of counsel - specifically arguing that he needs an attorney to locate and properly serve Defendant Williams. Turning to the first objection, Plaintiff points to Federal Rule of Civil Procedure 12(h). That Rule provides as follows:

(h) Waiving and Preserving Certain Defenses.
(1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the circumstances described in ...

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