Perdue v. Ohio Department of Corrections, et al.

Filing 41

ORDER denying 33 Plantiff's Motion for TRO ; denying 34 Plaintiff's Motion for Summary Judgment; adopting Report and Recommendations [37 & 38]. Signed by Judge Sandra S Beckwith on 4/14/15. (mb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Robert E. Perdue,
Plaintiff,
vs.
Ohio Department of Corrections, et al,
Defendants.

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Case No. 1:14-cv-084

ORDER
The Magistrate Judge filed two Reports in this case concerning two motions filed
by the Plaintiff, Robert Perdue. The first Report (Doc. 37) recommends that Plaintiff’s
motion for a temporary restraining order be denied. The second Report (Doc. 38)
recommends that Plaintiff’s motion for summary judgment be denied. Plaintiff has filed
objections to both of these Reports. (Docs. 39, 40)
Plaintiff is an inmate at the Southern Ohio Correctional Facility, and is proceeding
pro se in this case. He filed a motion seeking a temporary restraining order to stop
various prison staff from making threats, taking his legal work, retaliating against him by
their “Blue-code tactic of terrorization,” and denying him meals. (See Doc. 33) The
Magistrate Judge found that Plaintiff did not allege facts that would be sufficient to
warrant a preliminary injunction, which requires the Court to consider four factors: (1)
has Plaintiff shown a likelihood of success on the merits of his Eighth Amendment
claims; (2) will Plaintiff suffer irreparable harm without injunctive relief; (3) will an
injunction cause harm to others; and (4) is the public interest served by granting the
injunction. See Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000). Plaintiff’s

motion fails to address these factors, and purports to seek affirmative relief against
correctional officers who are not parties to this case. Moreover, the injunction Plaintiff
seeks would address alleged problems and deficiencies that have yet to be proven. For
these reasons, the Magistrate Judge recommended that Plaintiff’s motion be denied.
Plaintiff objects, relying on his declaration that he was denied breakfast on
September 29, 2014, and which states that individual officers are “destroying his legal
work.” (Doc. 39 at 1) He makes no attempt to address the four factors that are
relevant to the grant of injunctive relief. And he does not respond to the Magistrate
Judge’s apt observation that he is seeking affirmative relief against non-parties to his
lawsuit. The Court agrees with the Magistrate Judge that Plaintiff has not shown that he
is entitled to preliminary injunctive relief.
In the Second Report (Doc. 38), the Magistrate Judge recommends that
Plaintiff’s motion for summary judgment be denied. Plaintiff’s motion (Doc. 34) states
that he filed his lawsuit against ODRC medical personnel, and reviews his claims that
he has been denied medical treatment and discriminated against based on his military
service. The Magistrate Judge found that Plaintiff’s pending motion is based entirely on
his own unsupported assertions that Plaintiff has been denied adequate medical care,
and provided with improper treatment. The only “evidence” submitted by Plaintiff is a
declaration of another inmate (David Cooper), submitted with his reply. Cooper states
that a third inmate (someone he calls “Osama”) attacked Plaintiff after this other inmate
complained that he was hearing voices and was in need of help. (Doc. 36 at 3) This
evidence is not relevant to Plaintiff’s motion, which contends that Plaintiff is not
receiving proper medical care. The Magistrate Judge concluded that in the absence of
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any relevant, admissible evidence, Plaintiff’s motion must be denied.
Plaintiffs objects, arguing that the declaration of his fellow inmate Cooper
establishes that the Defendants “failed to control and properly medicate” the inmate who
allegedly attacked Plaintiff. (Doc. 40) The “Defendants” he refers to are apparently
unnamed corrections officers who presumably overheard “Osama” prior to the assault.
Plaintiff’s Eighth Amendment claims alleged in his complaint, and on which he
presumably seeks summary judgment, are not brought against these unnamed
corrections officers. Moreover, as the Magistrate Judge correctly concluded, Plaintiff
has not proffered relevant, admissible evidence supporting his claims regarding his own
medical treatment such that summary judgment would be proper.
The Court has conducted a de novo review of the record, pursuant to 28 U.S.C.
§636(b) and Federal Rule of Civil Procedure 72(b). The Court finds that Plaintiff’s
objections to the Magistrate Judge’s Reports, and the recommendations contained in
both of the Reports, are not well taken. Plaintiff’s objections (Docs. 39, 40) are
therefore overruled. The Court adopts the Magistrate Judge’s Reports (Docs. 37 and
38) in full.
SO ORDERED.
DATED: April 14, 2015

s/Sandra S. Beckwith
Sandra S. Beckwith, Senior Judge
United States District Court

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