United States District Court, S.D. Ohio, Western Division
MICHAEL R. BARRETT JUDGE.
matter is before the Court on the Magistrate Judge's
October 10, 2018 Report and Recommendation
(“R&R”) (Doc. 42) and April 19, 2019
Supplemental R&R (Doc. 52).
notice has been given to the parties, including notice that
they 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 timely objections to both R&Rs (Docs. 46,
53) and Defendant University of Cincinnati Medical Center
(“UCMC”) filed a Response to Plaintiff's
first objections (Doc. 48). The Magistrate Judge provided a
comprehensive review of the record in the R&Rs and the
same will not be repeated here except to the extent necessary
to address Plaintiff's objections.
STANDARDS OF REVIEW
made by a Magistrate Judge are subject to the review of the
district court pursuant to 28 U.S.C. § 636(b)(1). With
respect to non-dispositive matters, and when the Court
receives timely objections to an R&R, “the district
judge in the case must consider timely objections and modify
or set aside any part of the order that is clearly erroneous
or is contrary to law.” Fed.R.Civ.P. 72(a). With
respect to dispositive matters, and when the Court receives
timely objections to an R&R, 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.
Court will begin with Plaintiff's Objections to the
Supplemental R&R. Those objections are virtually
identical to his prior objections to the October 10, 2018
R&R and, more importantly, do not include any argument
regarding the Magistrate Judge's recommendation that the
Court deny his Motion to Retain “Pendant” or
Supplemental Jurisdiction over his state law claims. (Doc.
53). Compare (Doc. 46 at PageID 288-305),
with (Doc. 53 at PageID 361-378). The Court will,
thus, overrule Plaintiff's objections to the Supplemental
to Plaintiff's objections to the October 20, 2018
R&R, he objects to the Magistrate Judge's orders
denying his Motion to Amend his Complaint (Doc. 32) and
Motions to Appoint Counsel (Doc. 17). Plaintiff filed his
initial Complaint in November 2017 and the Magistrate allowed
him to amend that Complaint twice. (Doc. 26). Moreover, and
as the Magistrate Judge explained, his third Motion to Amend
is untimely and fails to include a complete copy of the
requested amended compliant; rather, he attached a copy of a
prior amendment which the Magistrate Judge already granted.
(Docs. 32, 42). The Magistrate Judge similarly explained that
he has no constitutional right to appointment of counsel and
there are no exceptional circumstances present that convince
the Court that utilizing its powers to appoint counsel is
necessary in this case. Lavado v. Keohane, 992 F.2d
601, 605-06 (6th Cir. 1993); see 28 U.S.C. §
1915(e). Having reviewed the Magistrate Judge's R&R
on these non-dispositive matters, the Court finds no portion
to be “clearly erroneous or contrary to law” and
accepts the recommendations. Fed.R.Civ.P. 72(a), (b)(3).
also argues that the Magistrate Judge erred by taking
judicial notice of Plaintiff's state court charges,
guilty plea, additional convictions, sentencing, and appeal
surrounding the November 12, 2015 incident. (Doc. 46 at
PageID 290-292, 301-02). However, “[f]ederal courts may
take judicial notice of proceedings in other courts of
record.” Granader v. Public Bank, 417 F.2d 75,
82-83 (6th Cir. 1969); see Rodic v. Thistledown Racing
Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980).
Similarly, to the extent that his objections include
allegations that he not able to learn the applicable law or
cite pertinent cases because his access to the law library is
limited, the law librarian requires inmates to obtain a pass,
and LexisNexis is only on two computers, (Doc. 46 at PageID
294-296), the Court notes that it has granted him multiple
extension in this matter in light of his trouble accessing
the law library. See e.g., (Doc. 26, 37, 45).
Moreover, “[p]risoners may not dictate . . . the method
by which access to the courts will be assured.”
Penland v. Warren County Jail, 759 F.2d 524, 531 n.7
(6th Cir. 1985) (en banc).
next objects to the Magistrate Judge's finding that he
has failed to state claims against each Defendant. (Doc. 46
at PageID 293-94). Plaintiff provides boilerplate legal
citations, reiterates the allegations in his Complaint, as
amended, and states the Magistrate Judge was incorrect.
(Id.). The Court is not persuaded by Plaintiff's
conclusory disagreement. See Aldrich v. Bock, 32
F.Supp.2d 743, 747 (E.D. Mich. 2004) (“An
‘objection' that does nothing more than state a
disagreement with a magistrate [judge]'s suggested
resolution, or simply summarizes what has been presented
before, is not an ‘objection' as that term is used
in this context.”).
extent that Plaintiff attempts to clarify the constitutional
claims against each Defendant in his objections, (Doc. 46 at
PageID 299-301), he is cannot do so at this time. See
Allen v. Andersen Windows, Inc., 913 F.Supp.2d 490, 499
(S.D. Ohio 2012) (“As a general rule, it is elementary
that the Court does not (and cannot) consider matters outside
the four corners of the complaint when considering a motion
to dismiss under Fed.R.Civ.P. 12(b)(6).”).
next contends that Ohio Rule of Civil Procedure 10(d) is
unconstitutional, because it is impossible for him, an
indigent prisoner, to obtain an affidavit of merit for his
medical claim. (Doc. 46 at PageID 302- 304). Cf.
Ohio Civ. R. 10(D)(2)(a) (“a complaint that contains a
medical claim . . . shall be accompanied by one or more
affidavits of merit relative to each defendant named in the
complaint for whom expert testimony is necessary to establish
liability.”). The Court agrees with Defendant UCMC that
while complying with Ohio Civil Rule 10(D)(2)(a) may be
difficult for Plaintiff, that difficulty does not render the
Rule unconstitutional. Moreover, aside from stating the
trouble he has obtaining such an affidavit, Plaintiff
provides no argument regarding what portion of that Rule is
unconstitutional and the Court will not manufacture arguments
on his behalf.
although Plaintiff asserts that the proper remedy for his
failure to attach the required affidavit of merit is for
Defendant to request a more definite statement rather than
move for dismissal, (Doc. 46 at PageID 304-05), he is
incorrect. See Fletcher v. Univ. Hosps. of
Cleveland, 2008-Ohio-5379, ¶ 21, 120 Ohio St.3d
167, 172, 897 N.E.2d 147, 151 (holding “that the proper
response to a failure to comply with Civ. R. 10(D)(2) is a
motion to dismiss filed under Civ. R. 12(B)(6).”).