Israfil v. Woods

Filing 224

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 199 Report and Recommendations in all respects, granting in part and denying in part 167 Motion for Summary Judgment. Defendants Coulter and Woods are granted judgment as a matter of law on all claims stated against them, whether in their individual or official capacities; all claims against the Warden of Warren Correctional Institution are, to the extent not already dismissed, hereby dismissed; all claims against John Doe Defendant s, with the exception of Jennifer Young, are dismissed for failure of service; and all claims against Defendant Sexton and any and all other Defendant in his or her official capacity are dismissed. Plaintiff's First Amendment retaliation and Ei ghth Amendment excess force claims against Defenant Sexton in his individual capacity survive summary judgment. Finally, the Court notes that, as of the time of the filing of the Magistrate Judge's Report and Recommendaiton, Plaintiff had yet t o successfully serve Defendant Jennifer Young. An Order for service was issued within two weeks of the filing of the Magistrate Judge's report, and the summons was returned executed shortly thereafter. Therefore, the claims against Defendant Y oung remain pending; denying 211 Objections to Magistrate Judge Order 198 ; denying 222 Defendants' Motion to Strike 221 Objection to Report and Recommendations. Signed by Judge S Arthur Spiegel on 6/6/2012. (km1) (Additional attachment(s) added on 6/12/2012: # 1 Certified Mail Receipt) (km1).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MUMIN ISRAFIL,

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Plaintiff,
v.
BARBARA WOODS, et. al.,
Defendants.

NO. 1:09-CV-00468

OPINION AND ORDER

This matter is before the Court on the Magistrate Judge’s
Report and Recommendation (doc. 199), Defendants’ objections (doc.
201) and Plaintiff’s objections (doc. 217).

In her Report and

Recommendation, the Magistrate Judge recommends that Defendants’
motion for summary judgment be granted in part and denied in part.
Also pending before the Court are Plaintiff’s Objections to a
Portion of Magistrate’s December 7, 2011 Memorandum Order (doc.
211)

and

Defendants’

Motion

to

Strike

Plaintiff’s

Concluded

Objections to Magistrate’s Report and Recommendation (doc. 222).
As
Plaintiff’s

an

initial

Concluded

matter,

Objections

Defendants’
to

Motion

Magistrate’s

to

Strike

Report

and

Recommendation (doc. 222) is DENIED. Plaintiff had until April 27,
2012 to file objection to the Magistrate Judge’s Report and
Recommendation.

He filed an initial set of objections on April 2,

2012, and a “Concluded Objections” on May 2, 2012.

Those latter

objections appear to have been signed on April 26, 2012, and the

Court, noting Plaintiff’s pro se status and the fact that he is
currently incarcerated, will not bar them from review because they
were not filed until six days later.
As required by 29 U.S.C. § 636(b) and Federal Rule of
Civil Procedure 72(b), the Court has reviewed the comprehensive
analysis of the Magistrate Judge and considered de novo all of the
filings in this matter.

Upon thorough consideration of the

foregoing, the Court finds the parties’ objections unpersuasive,
determines that the Magistrate Judge’s Report and Recommendation is
thorough, well-reasoned and correct, and ADOPTS and AFFIRMS it in
all respects (doc. 199).

Accordingly, Defendants’ Motion for

Summary Judgment (doc. 167) is GRANTED IN PART and DENIED IN PART;
Defendants Coulter and Woods are granted judgment as a matter of
law on all claims stated against them, whether in their individual
or official capacities; all claims against the Warden of Warren
Correctional Institution are, to the extent not already dismissed,
hereby dismissed; all claims against John Doe Defendants, with the
exception of Jennifer Young, are dismissed for failure of service;
and all claims against Defendant Sexton and any and all other
Defendant in his or her official capacity are dismissed.
Plaintiff’s

First

Amendment

retaliation

and

Eighth

Amendment excessive force claims against Defendant Sexton in his
individual capacity survive summary judgment.

Finally, the Court

notes that, as of the time of the filing of the Magistrate Judge’s

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Report and Recommendation, Plaintiff had yet to successfully serve
Defendant Jennifer Young.

An order for service was issued within

two weeks of the filing of the Magistrate Judge’s report, and the
summons was returned executed shortly thereafter.

Therefore,

claims against Defendant Young remain pending.
The Court now turns to Plaintiff’s Objections to a
Portion of Magistrate’s December 7, 2011 Memorandum Order (doc.
211).

As a general matter, these objections are rendered moot by

the Court’s decision on Defendants’ motion for summary judgment.
But even if they were not moot, they are either meritless and/or
unpersuasive.

Specifically, Plaintiff asserts that he could not

adequately respond to Defendants’ motion for summary judgment
because

he

was

denied

certain

discovery.

However,

as

the

Magistrate Judge noted in her Order, Plaintiff’s request for
discovery is moot, as on May 26, 2011, Defendants stated that a
copy of the medical records sought by Plaintiff was mailed to
Plaintiff (doc. 198). Plaintiff’s interpretation of the Magistrate
Judge’s

Order–that

it

“gives

the

impression

no

Rule

56(d)

declaration exists to be ruled upon”– is simply an erroneous
interpretation.

The Magistrate Judge clearly ruled on the open

issue before her, whether Defendants had produced the requested
outstanding discovery.

Finding that they had, the issue was

correctly deemed resolved, thus rendering Plaintiff’s motion moot.
Second, Plaintiff seeks sanctions because, he alleges, he

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was not provided with a copy of his records, and he objects to the
Magistrate

Judge’s

Order

denying

his

motion

for

sanctions.

However, as noted above, he has in fact received all relevant
records.

In addition, he is entitled to review any other of his

medical records and make copies of them as needed, so the Court
finds absolutely no basis for sanctions and no error in the
Magistrate Judge’s order.
Third,
consideration
declaration
experts.

of

Plaintiff
Dr.

because,

objects

Miller’s
inter

to

opinion

alia,

they

the

Court’s

and
were

to
not

review

Lisa

and

Bethel’s

qualified

as

However, as Defendants note, Plaintiff consented to Dr.

Miller’s independent medical exam, so Plaintiff’s objections at
this stage are baseless and amount to little more than disagreement
with Dr. Miller’s medical assessment.

As to Lisa Bethel, her

declaration was made as the custodian of the medical records, and
she is competent to testify as such.

Nothing in Plaintiff’s

objections compels a different result.
Fourth, Plaintiff’s objections to the Magistrate Judge’s
comments regarding Plaintiff’s failure to timely file his response
to Defendants’ motion for summary judgment appear to be mere
formalities made in case failure to make the objections could be
construed as waiving objection.
any

“unfair

prejudice”

The Court was not influenced by

contained

in

the

Magistrate

Judge’s

comments, and, in any event, the Magistrate Judge granted Plaintiff

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leave to file his response notwithstanding the timeliness issue.
Therefore, Plaintiff’s objections are unpersuasive.
For

the

reasons

set

forth

above,

the

Court

DENIES

Plaintiff’s Objections to a Portion of Magistrate’s December 7,
2011 Memorandum Order (doc. 211).
In sum, the Court AFFIRMS and ADOPTS the Magistrate
Judge’s Report and Recommendation in its entirety (doc. 199);
DENIES Plaintiff’s Objections to a Portion of Magistrate’s December
7, 2011 Order (doc. 211); and DENIES Defendants’ Motion to Strike
(doc. 222).
SO ORDERED.

Dated: June 12, 2012

/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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