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Marshall v. Ohio Department of Rehabilitation & Corrections

United States District Court, S.D. Ohio, Eastern Division

May 19, 2017

Kenneth Marshall, Plaintiff,
v.
Ohio Department of Rehabilitation & Corrections, et al., Defendants.

          Kemp Magistrate Judge

          OPINION AND ORDER

          MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT

         On April 10, 2017, Magistrate Judge Kemp, to whom this case was referred, issued a Report and Recommendation ("R&R") recommending that the Court grant in part and deny in part Defendants' motion for judgment on the pleadings and grant Defendants' motion for summary judgment in this prisoner civil rights case. R&R, ECF No. 148. Plaintiff timely objected. Obj., ECF No. 149.

         I. STANDARD OF REVIEW

         Magistrate Judge Kemp issued the R&R pursuant to Federal Rule of Civil Procedure 72(b). Under that rule, the Undersigned must determine de novo any part of the Magistrate Judge's disposition that has been properly objected to. Fed.R.Civ.P. 72(b)(3). The Undersigned may accept, reject, or modify the R&R, receive further evidence, or return the matter to the Magistrate Judge with instructions. Id.

         II. ANALYSIS

         There are nineteen Defendants remaining in this case, some of whom are entities and some of which are individuals. The R&R recommends dismissing any claims against the Ohio Department of Rehabilitation and Corrections ("ODRC") and any prison official sued in his or her official capacity, concluding that any claim for money damages against such Defendants is barred by the Eleventh Amendment, and any claim for injunctive relief against the individual Defendants in their official capacities is moot because Plaintiff has been released from prison since the filing of this case. R&R 4-6, ECF No. 148.

         The R&R recommends dismissing Plaintiffs denial of access to the courts claims against the Defendants in their individual capacities for failure to state a claim. Id. at 6.

         The R&R recommends dismissing Plaintiffs Eighth Amendment claim for denial of medical care as to Defendant Lizabeth Dilley[1] in her individual capacity for failure to state a claim and recommends dismissing Plaintiffs Eighth Amendment claims against the remaining defendants in their individual capacities on summary judgment for failure to exhaust administrative remedies. Id. at 11-19.

         Finally, the R&R recommends dismissing all of Plaintiffs claims against certain unserved Defendants pursuant to Federal Rule of Civil Procedure 4(m). Id. at 20.

         The R&R specifically advised the parties that they had a right to file "written objections to those specific proposed findings or recommendations to which objection is made." R&R 20, ECF No. 148. The R&R further advised that a failure to object to the R&R would result in a waiver of the right to have the Undersigned review the R&R de novo and a waiver of the right to appeal the decision of the Undersigned adopting the R&R. Id. at 21.

         A. No Objection

         Plaintiffs objections focus only on whether he exhausted his administrative remedies and argue that he should be appointed counsel to assist with discovery. Obj. 1-2, ECF No. 149. Accordingly, the Court adopts, without conducting a de novo review, the recommendations that the Court dismiss without prejudice any claims against the ODRC or any prison official sued in his or her official capacity for lack of jurisdiction as barred by the Eleventh Amendment; the recommendation that the Court dismiss without prejudice Plaintiff's denial of access to the courts claims against all Defendants in their individual capacities for failure to state a claim; the recommendation that the Court dismiss without prejudice Plaintiff's Eighth Amendment claim for denial of medical care as to Defendant Lizabeth Dilley in her individual capacity for failure to state a claim; and the recommendation that the Court dismiss without prejudice all of Plaintiffs claims against Defendants "Medical Records Personnel, Mrs. Jackie, the Collegial Review Board, Mental Health Director, and Nurse Josh, " R&R at 20, ECF No. 148, for failure to serve.

         B. Eighth Amendment Claims Against Remaining Defendants in ...


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