Barfield v. Erdos et al
DECISION AND ENTRY: (1) ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 70 ); (2) OVERRULING PLAINTIFFS OBJECTIONS (Doc. 72 ); and (3) TERMINATING THIS CASE FROM THE DOCKET. Signed by Judge Timothy S. Black on 3/22/17. (eh)(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
RON ERDOS, et al.,
Case No. 1:15-CV-696
Judge Timothy S. Black
Magistrate Judge Karen L. Litkovitz
DECISION AND ENTRY:
(1) ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED
STATES MAGISTRATE JUDGE (Doc. 70);
(2) OVERRULING PLAINTIFF’S OBJECTIONS (Doc. 72); and
(3) TERMINATING THIS CASE FROM THE DOCKET
This case is before the Court pursuant to the Order of General Reference in the
United States District Court for the Southern District of Ohio Western Division to United
States Magistrate Judge Karen L. Litkovitz. Pursuant to such reference, the Magistrate
Judge reviewed the pleadings and memoranda filed with this Court, and on February 6,
2017, submitted a Report and Recommendation. (Doc. 70). Plaintiff timely filed
objections (“Objections”) (Doc. 72). 1
At this point, Plaintiff has two claims remaining: (1) an excessive force claim and (2) a
conditions of confinement claim. The Magistrate Judge recommended that both claims
be dismissed because Plaintiff had not exhausted his administrative remedies, and in the
alternative, that Defendants be granted judgment on the merits of the excessive force
claim. The Objections do not allege a single error in the Magistrate Judge’s findings or
analysis. Instead, the Objections argue that Plaintiff was subject to excessive force (Doc.
72 at 2-3) and exhausting administrative remedies should not be mandatory (id. at 5).
Plaintiff already asserted these arguments—verbatim—in his opposition to Defendants’
motion for summary judgment (Doc. 66 at 2-4) and they fail for the reasons explained in
the Report and Recommendation.
As required by 29 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
of the filings in this matter. Upon consideration of the foregoing, the Court does
determine that such Report and Recommendation should be and is hereby adopted in its
entirety and Plaintiff’s Objections to the Report and Recommendation are overruled.
1. The Report and Recommendation (Doc. 70) is ADOPTED;
2. Defendants’ motion for summary judgment (Doc. 61) is GRANTED; and
3. Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE due to Plaintiff’s
failure to properly exhaust his administrative remedies; 2
4. The Court certifies that pursuant to 28 U.S.C. Section 1915(a) an appeal of this
Order would not be taken in good faith and therefore Plaintiff is denied leave to
appeal in forma pauperis. However, Plaintiff remains free to apply to proceed in
forma pauperis in the Court of Appeals; and
5. This case is TERMINATED on the docket of this Court.
IT IS SO ORDERED.
Timothy S. Black
United States District Judge
This Court adopts the Magistrate Judge’s initial recommendation that Plaintiff’s claims
fail because he did not exhaust his administrative remedies. Accordingly, the Court need
not address the Magistrate Judge’s alternative holding that Defendants are entitled to
judgment on the merits of Plaintiff’s excessive force claim.
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