United States District Court, S.D. Ohio, Western Division
DANIEL P. HARGROVE, Plaintiff,
CO HOLLEY, et al., Defendants
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge.
a former inmate at Lebanon Correctional Institution
("LeCI"), brings this civil rights action under 42
U.S.C. § 1983 against three prison employees alleging
violations of his Eighth Amendment rights for failing to
protect him from an attack by a fellow inmate and for
deliberate indifference to his medical needs. (Doc. 7). This
matter is before the Court on defendants Holley and
Hubbard's motion to dismiss (Doc. 24), plaintiffs
response in opposition (Doc. 29), and defendants' reply
memorandum (Doc. 30). This matter is also before the Court on
plaintiffs motion for punitive damages (Doc. 14), motion for
monetary judgment (Doc. 26), second motion for monetary
judgment (Doc. 32), motion for monetary judgment/breach of
time (Doc. 42) and defendants' response in opposition
(Doc. 44), and plaintiffs motion to change the name of and
properly serve a new defendant (Doc. 45). This matter is also
before the Court on defendants' motion to strike (Doc.
was granted leave to proceed in forma pauperis and
initiated this action on August 25, 2017. (Docs. 1, 3). On
October 31, 2017, the undersigned conducted a sua
sponte review of plaintiff s amended complaint (Doc. 7)
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1). The undersigned recommended that plaintiff could
proceed with his Eighth Amendment individual capacity claim
for failure to protect against defendants Holley and Hubbard
and his Eighth Amendment individual capacity claim for
deliberate indifference to his serious medical needs against
defendant Heyd. (Doc. 10 at 16). The undersigned further
recommended that plaintiffs motions to amend his complaint a
second time and motion for a preliminary injunction be
denied. On December 27, 2017, the District Court adopted the
Report and Recommendation. (Doc. 17).
The Amended Complaint (Doc. 7)
alleges that on July 1, 2017 at 11:50 a.m., while he was half
asleep in his cell in R-block, his cellmate "attacked]
him and bit his right ear off or half of it and pulled his
right eye out of [its] socket." (Amended Complaint, Doc.
7 at 1). At the time of the alleged attack, plaintiff claims
that "only one officer [Holley] was working in
R-block." (Id.). Plaintiff further claims that
"the cells had no emergency call system."
(Id.). According to plaintiff, he informed defendant
Holley before the alleged attack "about the differences
[he] and his cell-mate had." (Id.). Plaintiff
alleges that defendant Holley was "negligent in moving
[him] out of the cell." (Id.). Plaintiff also
alleges that defendant Holley "failed to stop the
attack, he was just standing there watching."
(Id.). Plaintiff claims that defendant Hubbard,
"the supervisor that['s] over the hole [sic],
R-block," should have moved plaintiff out of the cell
the day before the attack "after [Hubbard] was told
about [the] cell-mate[']s constant ejackulation [sic] in
the cell while the plaintiff was in the cell with him."
(Id. at 3). Based on these allegations, plaintiff
brings claims against defendants Holley and Hubbard under the
Eighth Amendment for failure to protect him from the attack
by his cellmate.
Motion to Strike
Holley and Hubbard move to strike plaintiffs supplemental
memorandum (Doc. 31) filed in response to their reply
memorandum, as well as plaintiffs motion for monetary
judgment (Doc. 32), which they construe as an additional
response to their reply memorandum. (Doc. 36).
to strike are governed by Rule 12(f), which provides that a
court "may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or
scandalous matter." Fed.R.Civ.P. 12(f). The Local Rules
for the Southern District of Ohio provide:
Opposing and Reply Memoranda. Any memorandum in opposition
shall be filed within twenty-one days after the date of
service of the motion. Failure to file a memorandum in
opposition may result in the granting of any motion that
would not result directly in entry of final judgment or an
award of attorneys' fees. Any reply memorandum shall be
filed within fourteen days after the date of service of the
memorandum in opposition. No additional memoranda beyond
those enumerated are permitted except upon leave of court for
good cause shown.
Ohio Local Civil Rule 7.2(a)(2) (emphasis added). Plaintiff
has neither sought leave of court nor shown good cause for
the filing of these memoranda in response to defendants'
defendants' motion to strike (Doc. 36) is
GRANTED and plaintiffs memoranda (Docs. 31,
32) shall be STRICKEN from the docket of
Defendants Holley and Hubbard's Motion to Dismiss (Doc.