United States District Court, S.D. Ohio, Eastern Division
OPINION AND ORDER
MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT
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.
STANDARD OF REVIEW
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.
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.
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.
R&R recommends dismissing Plaintiffs Eighth Amendment
claim for denial of medical care as to Defendant Lizabeth
Dilley 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.
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.
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.
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.
Eighth Amendment Claims Against Remaining Defendants in ...