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Al-Zerjawi v. Kline

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

December 21, 2017

SAFAA AL-ZERJAWI, Plaintiff,
v.
JAMES KLINE, et al., Defendants.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO. 88]

          BENITA Y. PEARSON, JUDGE.

         Pending before the Court is pro se Plaintiff Safaa Al-Zerjawi's Motion for Extension of Time to Perfect Service Upon Five Named Defendants (ECF No. 88). United States Magistrate Judge Kathleen B. Burke prepared a report in accordance with 28 U.S.C. § 636(b)(1)(B) and recommended that Plaintiff's Motion for Extension of Time to Perfect Service (ECF No. 88) be denied and that his claims against those Defendants be dismissed without prejudice. ECF No. 92. Plaintiff filed a timely objection to the report and recommendation. ECF No. 95. The Court has reviewed the above filings, the relevant portions of the record, and the governing law. For the reasons provided below, the Court overrules Plaintiff's objection and adopts the report and recommendation of the magistrate judge.

         I. Factual and Procedural Background

         Plaintiff was an inmate at Trumbull Correctional Institution (“TCI”), at the time he filed this civil rights action against Defendants, the “Medical Staff” at the Corrections Reception Center in Orient, Ohio; James Kline, a Medical Doctor at TCI; and the Ohio Department of Rehabilitation and Correction. He seeks monetary damages and other relief for violations under 42 U.S.C. § 1983.[1], [2] ECF No. 1. After receiving several extensions of time within which to do so, Plaintiff timely filed an Amended Complaint in which he alleges the same claims as in his original complaint and names eight new individual Defendants: Eddy, Saul, Cullen, Rhigi, Phillians, Bankes, Winfield, and Damcheu. ECF No. 55.

         Plaintiff alleges that, in 2014, while he was detained in Corrections Reception Center in Columbus (“CRC”), he was attacked by another inmate, who hit him in the face with a rock, fracturing bones in his face and skull. ECF No. 55 at PageID#: 352. He alleges nurses and medical staff at CRC “ignored [his] pleas for help and care” following this attack and failed to provide him medical attention for several days. Id. at PageID#: 352-53. When he was eventually seen by a doctor, a facial fracture was confirmed. Id. at PageID#: 353-54. After a two-month delay, Plaintiff was seen by a specialist, who told him he should have seen him immediately and that his injury required surgical intervention. Id. at PageID#: 354. Plaintiff contends that his facial fractures “have never been treated properly, ” and that Dr. Kline, the medical doctor at TCI where he was incarcerated at the time he filed this action, “refuse[d] to allow” him the surgery he requires. Id. at PageID#: 355. Plaintiff also complains he received inadequate care from medical staff at TCI for an injury to his left eye he sustained as a result of the attack. Id. at PageID#: 354-55.

         Service was returned and executed upon three of the newly named Defendants in Plaintiff's Amended Complaint (ECF Nos. 62 and 63), but unexecuted upon five named Defendants, that include Rhigi, Phillians, Bankes, Winfield, and Damcheu (ECF Nos. 65 and 66) (collectively “Defendants”). On July 26, 2017, the magistrate judge informed Plaintiff that his failure to perfect service upon the above-named Defendants “within thirty (30) days, ” that being by August 28, 2017, would result in the dismissal without prejudice of Plaintiff's action against those Defendants, pursuant to Fed.R.Civ.P. 4(m). ECF No. 85. Plaintiff alleges that he timely submitted a Motion for Extension of Time to Perfect Service Upon Five Named Defendants (ECF No. 88) to the Court on August 17, 2017. ECF No. 91 at PageID#: 1034. Plaintiff further alleges that the Mansfield Correctional Institution prison mailroom failed to timely deliver his legal envelope addressed to the Court because it lacked sufficient postage. Id. His motion was untimely filed on September 5, 2017-after the magistrate judge's cutoff date. Id. Of significance, Plaintiff failed to serve the remaining Defendants by the cutoff.

         The magistrate judge recommended that Plaintiff's motion for more time to serve Defendants Rhigi, Phillians, Bankes, Winfield, and Damcheu (ECF No. 88) be denied and that his claims against those Defendants be dismissed without prejudice. ECF No. 92.

         Plaintiff's timely objection followed. ECF No. 95. Plaintiff continues to seek an extension of time to perfect service on three of the five named Defendants: Rhigi, Phillians, and Winfield. Id. at PageID#: 1126.

         II. Standard of Review for a Magistrate Judge's Report and Recommendation

         When objections have been made to a magistrate judge's Report and Recommendation, the district court's standard of review is de novo. Fed. R. Civ. 72(b)(3). A district judge:

must determine de novo any part of the magistrate judge's disposition that has been properly objected to. 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. Near verbatim regurgitation of the arguments made in earlier filings are not true objections. When an “objection” merely states disagreement with the magistrate judge's suggested resolution, it is not an objection for the purposes of this review. Cvijetinovic v. Eberlin, 617 F.Supp.2d 620, 632 (N.D. Ohio 2008), rev'd on other grounds, 617 F.3d 833 (6th Cir. 2010). Such “general objections” do not serve the purposes of Fed.R.Civ.P. 72(b). See Jones v. Moore, No. 3:04CV7584, 2006 WL 903199, at *7 (N.D. Ohio April 7, 2006). “A party who files objections to a magistrate [judge]'s report in order to preserve the right to appeal must be mindful of the purpose of such objections: to provide the district court ‘with the opportunity to consider the specific contentions of the parties and to correct any errors immediately.'” Id. (citing U.S. v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981)).

         III. Analysis

         Plaintiff objects to the entirety of the magistrate judge's report which recommends that Plaintiff's motion to perfect service (ECF No. 88) be denied, and his claims against ...


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