United States District Court, S.D. Ohio, Western Division
Michael R. Barrett United States District Judge
matter is before the Court on the Magistrate Judge's
February 15, 2019 Report and Recommendation
(“R&R”) (Doc. 49).
notice has been given to the parties, including notice that
the parties would waive further appeal if they failed to file
objections to the R&R in a timely manner. See United
States v. Walters, 638 F.2d 947 (6th Cir. 1981).
Plaintiff filed objections (Doc. 50). The Magistrate Judge
provided a comprehensive review of the record and the same
will not be repeated here except to the extent necessary to
address Plaintiff's objections.
STANDARD OF REVIEW
court receives objections to a magistrate judge's R&R
on a dispositive matter, the assigned “district judge
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 district judge may accept,
reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate
judge with instructions.” Id.
first argues that the Magistrate Judge erred by only
considering his Verified Complaint and failing to consider
his Motion for Summary Judgment, his Response to
Defendants' Motion for Summary Judgment, and his
declarations and exhibits filed with his Motion for Summary
Judgment and Response. (Doc. 50). However, the Magistrate
Judge expressly acknowledged that Plaintiff attached “a
declaration . . . an incident report and inmate use of force
statement from December 16, 2015, defendant Bear's
answers to his first request for interrogatories, and a
medical exam report from December 16, 2015” to his
Motion for Summary Judgment. (Doc. 49 at PageID 560).
Similarly, the Magistrate Judge acknowledged Plaintiff's
arguments found in his Motion for Summary Judgment
(id. at PageID 572, 574) and in his Response to
Defendants' Motion for Summary Judgment and his exhibits
attached to that Response (id. at PageID 564, 566,
568, 572, 574). The Court is not convinced that the
Magistrate Judge failed to consider the above filings before
issuing the R&R.
next asserts that the Magistrate Judge erred by finding that
he failed to establish a genuine issue of fact on the
subjective and objective components of his Eighth Amendment
excessive use of force claim. (Doc. 50). He contends that his
Motion for Summary Judgment, his Response to Defendants'
Motion for Summary Judgment, and his declarations and
exhibits filed with his Motion for Summary Judgment and
Response “clearly” “created a genuine issue
of fact on the subjective and objective components of his
Eighth Amendment excessive force claim” and the
Magistrate Judge did not consider those filings.
(Id. at PageID 578-579). The Court remains
unconvinced that the Magistrate Judge did not consider those
specific filings before issuing her R&R. Likewise, his
argument that his exhibits and arguments
“clearly” create a genuine issue of fact is
nothing more than a mere disagreement with the R&R and
his bare assertions stating that there are
“clear” genuine issues of fact are unpersuasive.
and regarding Plaintiff's Eighth Amendment denial of
medical care claim, he contends that the Magistrate Judge
erred in finding that, “[a]s a matter of law,
plaintiff's declarations do not establish that he
suffered from a ‘sufficiently serious' medical need
as required for an Eighth Amendment violation.” (Doc.
49). He, again, asserts that he “clearly” created
a genuine issue of fact as to this claim, but the Magistrate
Judge failed to consider pertinent exhibits. (Doc. 50). The
Court remains unpersuaded by his contention that the
Magistrate Judge failed to consider the pertinent filings and
his bare disagreements with her findings. Moreover, Plaintiff
does nothing to address the Magistrate Judge's finding
that “Plaintiff has failed to present evidence that
the[ Defendant] nurses falsified any medical records in
connection with the December 16, 2015 incident.” (Doc.
49 at PageID 574). Plaintiff's bald allegations that the
Defendant nurses falsified the medical exam reports in this
matter remain speculative and unconvincing.
and based on the Court's de novo review of the filings in
this matter, the Court finds Plaintiff's objections
unpersuasive and agrees with the findings and recommendation
in the R&R. See Fed. R. Civ. P. 72(b).
light of the above, the Magistrate Judge's February 15,
2019 Report and Recommendation (Doc. 49) is
ADOPTED in its entirety and Plaintiff's
Objections (Doc. 50) are OVERRULED. It is
hereby ORDERED that:
• Plaintiff's Motion for Summary Judgment (Doc. 35)
• Defendants' Motion for Summary Judgment (Doc. 40)