United States District Court, S.D. Ohio, Western Division
AND ENTRY ADOPTING IN PART AND REJECTING IN PART UNITED
STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS
(DOC. #118); SUSTAINING IN PART AND OVERRULING IN PART THE
PARTIES' OBJECTIONS THERETO (DOCS. ##121, 122, 124);
SUSTAINING DEFENDANT DR. CHRISTOPHER MCINTOSH'S MOTION
FOR LEAVE TO FILE OBJECTIONS TO THE MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATIONS (DOC. #131); SUSTAINING
DEFENDANTS' RULE 12 MOTIONS (DOCS. ##17, 35, 51, 66, 68);
SUSTAINING IN PART AND OVERRULING IN PART RULE 12 MOTIONS
(DOCS. ##30, 36, 61); OVERRULING AS MOOT MOTION TO DISMISS OF
DEFENDANT MONTGOMERY SHERIFF'S OFFICE SERGEANT BRIAN
LEWIS TO PLAINTIFF'S AMENDED COMPLAINT (DOC. #56) AND
PLAINTIFF'S MOTIONS TO STRIKE (DOCS. ##43, 58);
OVERRULING PLAINTIFFS' MOTIONS TO STRIKE (DOCS. ##42,
H. RICE, UNITED STATES DISTRICT JUDGE
matter is currently before the Court on several Objections,
Docs. ##121, 122, 124, to the Report and Recommendations of
United States Magistrate Judge Michael J. Newman, Doc. #118.
That Report and Recommendations concerned Rule 12 motions
filed by numerous Defendants.Also before the Court are several
Motions to Strike filed by Plaintiff. Docs. ##42, 43, 57, 58.
2017, pro se Plaintiff Richard Simkins III was
injured in a motorcycle accident. This case arises out of his
interactions with first responders and numerous medical
personnel following that accident. He has asserted claims
under 42 U.S.C. §§ 1985 and 1983. He also has
asserted numerous state law claims, including medical claims,
claims of assault and battery and intentional infliction of
emotional distress. In all, Plaintiff sued nearly sixty
following Defendants have moved to dismiss Plaintiff's
claims against them:
• City of Dayton, Chief Richard Biehl, Officer Andrew
Lane, Joseph S. Wiley and Craig C. Wolfe (Doc. #17);
• Grandview Hospital, Kettering Health Network
("KHN"), Duane Achtermaun, Amy Alexander, Clinton
Ball, Andrew Brochu, Susan Bullard, Laura Campbell, L.
Kathryn Campbell, Elizabeth Coriell, Loredel Corneja, Liz
Conell, Lindsey Dye, Lindsey Elliott, Archie Enoch, Sidarth
Goyal, Nicole Farrow, Geoffrey Hahm, Nancy Henne, Grant
Huish, David Jenkins, Rebecca Lewis, Michael McPheron, Mike
McPheron, Enrique Medina, Jamie Peters, Michael Pillion,
Shannon Ravine, Shelby Richardson, Jason Schofield, Michael
Stafford, Curt Suite, Nicole Van Home, Jacinta Walker, and
Erin Williams (collectively the "KHN Defendants")
• Dr. Ganesh Ghooray and Indiana Neuroscience Associates
• Sergeant Brian Lewis of the Montgomery County
Sheriff's Office (Docs. ##36 and 56);
• Dr. Erich Muckala, Dr. Joseph Blake, Kettering Network
Radiologists Inc., Dr. Geoffrey Hahm, Dr. Scott West and
Jason Schofield, P.A. (Doc. #51);
• Dr. Christopher Mcintosh, Dr. Patience Lesueur, and
Bobcat Emergency Physicians, LLC (Doc. #61);
• Dr. Paul Levy (Doc. #66); and
• Dr. Robin Wright (Doc. #68)
17, 2019, United States Magistrate Judge Michael J. Newman
issued a Report and Recommendations, Doc. #118, recommending
that the Court sustain in part and overrule in part Docs.
##17, 30, 36, 56, 61. He also recommended that the Court
sustain in their entirety Docs. ##35, 51, 66, 68. More
specifically, Magistrate Judge Newman recommended that:
• The Court dismiss all 42 U.S.C. 5 1985 claims because
Plaintiff failed to allege class-based discrimination;
• The Court dismiss the 42 U.S.C. § 1983
individual-capacity claims against all Defendants except
Lewis, Wiley, Wolfe and Jenkins;
• The Court dismiss the § 1983 official-capacity
claims against all Defendants because Plaintiff failed to
allege a policy or custom;
• The Court overrule the motions to dismiss the
state-law medical battery claims brought against Doctors
Mcintosh, Jenkins, Van Home and Enoch, and against KHN and
• The Court dismiss the assault and battery claims
against all Defendants except Lewis, Wiley and Wolfe;
• The Court dismiss the intentional infliction of
emotional distress claims against all Defendants except
Lewis, Wiley, Wolfe and Jenkins; and
• The Court dismiss all claims in which Plaintiff seeks
relief under Ohio's criminal statutes.
Judge Newman noted that, for the vast majority of Defendants
named in the Complaint, Plaintiff had failed to allege any
specific facts that would give rise to a plausible cause of
action against them. In the same judicial filing, Magistrate
Judge Newman denied as futile Plaintiff's Second Motion
for Leave to File an Amended Complaint, Doc. #87.
parties have filed Objections to the Report and
Recommendations. Defendants KHN, Grandview Hospital, Dr.
Archie D. Enoch, Dr. David Jenkins and Dr. Nicole K. Van Home
argue that Magistrate Judge Newman erred by declining to
recommend dismissal of: (1) the "medical claims"
directed at them; (2) the § 1983 claim against Dr.
Jenkins; and (3) the intentional infliction of emotional
distress claim against Dr. Jenkins. Doc. #121. In
separately-filed Objections, Dr. Christopher Mcintosh also
argues that Magistrate Judge Newman erred by declining to
recommend dismissal of the "medical claims." Doc.
#124. Plaintiff Richard Simkins III, argues that
Magistrate Judge Newman erred by recommending that the claims
be dismissed with prejudice. Doc. #122.
Robin A. Wright, M.D., filed a Response to Plaintiff's
Objections, Doc. #126. Her Response was joined by the KHN
Defendants, Doc. #128. Plaintiff then filed a Reply, Doc.
#134. Plaintiff also filed Responses to the Objections of
KHN, Grandview Hospital, Enoch, Jenkins and Van Home, Doc.
#127, and to the Objections of Dr. Mcintosh, Doc. #129.
timely Objections to a Report and Recommendations on a
dispositive motion are filed, the Court must review those
Objections de novo. Fed. R. Civ. P. 72(b)(3). The
Court will address the parties' Objections by topic.
of the Defendants moved to dismiss Plaintiff's medical
claims because he failed to attach an affidavit of merit to
his Complaint as required by Ohio ...