Isbell v. Merlak et al

Filing 49

Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's general Objection (ECF No. 46 ) is overruled and the Report and Recommendation (ECF No. 44 ) of the Magistrate Judge is hereby adopted. Defendants' Motion to Dismiss (ECF No. 27 ) is granted. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Benita Y. Pearson on 8/24/2018. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ISRAEL CARL ISBELL,
Plaintiff,
v.
STEVE MERLAK, Warden, et al.,
Defendants.

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CASE NO. 4:17CV0076
JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF Nos. 27 and 46]

Pro Se Plaintiff Israel Carl Isbell filed this Bivens1 action against Elkton Federal
Correctional Institution (“FCI Elkton”), FCI Elkton Warden Steve Merlak, Federal Bureau of
Prisons (“BOP”), Federal Prison Industries, Inc., and “John Doe’s” BOP employees. In the
Complaint (ECF No. 1), Plaintiff alleges that all Defendants violated various constitutional rights
in their enforcement of BOP policies as to him, including by denying him a UNICOR job.
On May 8, 2017, the case was referred to Magistrate Judge Kathleen B. Burke for general
pretrial supervision pursuant to 28 U.S.C. § 636 and Local Rules 72.1 and 72.2(a). See Order of
Reference (ECF No. 12).
After Defendants filed a Motion to Dismiss (ECF No. 27), Plaintiff filed a memorandum
in opposition (ECF No. 40), and Defendants filed a reply memorandum (ECF No. 41), the
magistrate judge submitted a Report and Recommendation (ECF No. 44) on June 25, 2018
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Under the Bivens doctrine, a plaintiff may allege a claim based on an injury of
his constitutional rights by a federal employee. See Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971).

(4:17CV0076)
recommending that the motion be granted, the claim that Plaintiff was unconstitutionally denied
a UNICOR job be dismissed with prejudice for failure to state a claim upon which relief can be
granted, and the other claims which Plaintiff concedes are unexhausted be dismissed without
prejudice for failure to exhaust. ECF No. 44 at PageID #: 407 and 422.
In addition to filing a timely general Objection (ECF No. 46) in an attempt to preserve his
right to appeal, Plaintiff filed a Motion for Extension of Time to File Objection(s) (ECF No. 45).
Plaintiff moved the Court for a 60-day extension of time, i.e. until September 10, 2018, to file his
objections to the Report. On July 24, 2018, the Court granted in part Plaintiff ’s Motion for
Extension. Plaintiff was given until August 17, 2018 to file any specific Objections to the Report
he would like to be considered. Order (ECF No. 48). To date, Plaintiff has failed to file any
specific Objections.
Plaintiff’s general Objection states, in relevant part:
6.)

At this time, Plaintiff, in order to preserve his appeal rights, enters a
general OBJECTION to the ENTIRE R&R entered by [the] Magistrate
Judge[.]
* * *
WHEREFORE THE PLAINTIFF, Israel Carl Isbell, pro se, hereby
OBJECTS to Magistrate Judge Burke’s R&R in its ENTIRETY, and PRAYS that
this R&R is rejected by this Honorable Court.
ECF No. 46. Plaintiff does not explain how the Report’s analysis is wrong, why it was wrong, or
how de novo review would result in a different conclusion. “A general objection to the entirety
of the magistrate’s report has the same effects as would a failure to object. The district court’s
attention is not focused on any specific issues for review, thereby making the initial reference to
the magistrate useless.” Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.

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(4:17CV0076)
1991). “The filing of vague, general, or conclusory objections does not meet the requirement of
specific objections and is tantamount to a complete failure to object.” Cole v. Yukins, 7
Fed.Appx. 354, 356 (6th Cir. 2001) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995)).
Accordingly, Plaintiff’s general Objection (ECF No. 46) is overruled and the Report and
Recommendation (ECF No. 44) of the magistrate judge is hereby adopted. Defendants’ Motion
to Dismiss (ECF No. 27) is granted. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that
an appeal from this decision could not be taken in good faith.

IT IS SO ORDERED.

August 24, 2018
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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