Gallant v. Cadogan et al

Filing 101

ORDER adopting Report and Recommendation re 95 Report and Recommendation granting 67 Motion for Summary Judgment; granting 86 Motion for Leave to File Excess Pages; finding as moot 92 Motion to Strike ; granting 94 Motion to Strike; granting 98 Motion for Leave to File Excess Pages. Signed by Judge Michael R. Barrett on 9/21/18. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION CINCINNATI
JEREMY P. GALLANT,
Plaintiff,
Case No.1:16-CV-00487-MRB
vs.
Judge Michael R Barrett
ANTHONY CADOGAN, ET. AL.,
Defendants.
ORDER
This matter is before the Court on the magistrate judge’s August 14, 2018 report (Doc.
95), recommending that: Plaintiff’s motion to file excess pages (Doc. 86) be granted;
Defendants’ motion to strike non-comporting declarations (Doc. 92) be denied as moot;
Defendants’ motion to strike Plaintiff’s response to Defendants’ reply (Doc. 94) be granted; and
Defendants’ motion for summary judgment (Doc. 67) be granted.
On August 24, 2018, Plaintiff moved for an extension of time to file his objections.
(Doc. 96). On August 30, 2018, the Court partially granted the same, ordering that any
objections be filed on or before September 12, 2018. (Doc. 97). On September 14, 2018, the
Court received and docketed three sets of papers from Plaintiff:
(1) “Motion for Leave to Proceed- Request to Exceed Page Limitations” (Doc. 98),
attaching his 22-page set of objections as an exhibit (Doc. 98-1);
(2) Objections to the magistrate judge’s recommendation that Plaintiff’s supplemental
memorandum be stricken, and motion for leave to file “Supplemental Opposition”
(Doc. 99); and
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(3) “Official Objection Response [to] Defendants’ Motion to Strike” (Doc. 100).
The above-referenced papers do not include the required certificate of service. For the sake of
resolving this case on the merits, however, the Court will assume without finding that the abovereferenced papers were timely filed (even though they were docketed after the deadline).
At the outset, the Court will GRANT Plaintiff’s motion (Doc. 98) for leave to file
objections in excess of the page limit. Accordingly, the objections (Doc. 98-1) are accepted for
filing.
I.

BACKGROUND
Plaintiff is an inmate at Southern Ohio Correctional Facility (SOCF), and asserts claims

for: (1) deliberate indifference to a medical need (against Dr. Ahmed); (2) excessive force
(against Dr. Ahmed and unnamed Doe defendants); (3) first amendment retaliation (against
unnamed Doe defendants); (4) deliberate indifference to a medical need (against unnamed Doe
defendants), after Plaintiff was allegedly exposed to a harmful chemical agent; and (5) tampering
with the mail (against Defendants Cool, Frazie, Whittman, Mead, Satterfield, and “other
unidentified state officials.”). (Doc. 95, PageID 1390-91).
The magistrate judge summarized Plaintiff’s factual allegations (Doc. 95), which will not
be restated here except as necessary to address Plaintiff’s objections. However, the Court wishes
to independently echo the magistrate judge’s observation that Plaintiff’s modus operandi in this
case has largely involved submitting to this Court relatively few factual allegations, yet hundreds
of pages of documents that supposedly support his claims. As the magistrate judge observed,
Plaintiff essentially “asks the Court to wade through the documents he has submitted to find
evidence that contradicts defendants’ allegations and supports plaintiff’s claim[s].” (Doc. 95,
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PageID 1407). The Court agrees with the magistrate judge that “the Court’s burden on summary
judgment is not to ‘comb through the record to ascertain whether a genuine issue of material fact
exists.’” (Id.) (citing Cacevic v. City of Hazel Park, 226 F.3d 483, 492 (6th Cir. 2000); Guarino
v. Brookfield Twp. Trs., 980 F.2d 399, 407, 410 (6th Cir. 1992)).
The same way Plaintiff expects this Court to comb through the record, the form of
Plaintiff’s objections (Doc. 98-1) suggests that he likewise expects the Court to distill out of his
papers his objections to the adoption of the magistrate judge’s report and recommendation.
However, Fed. R. Civ. P. 72 requires objections to be “specific”:
Each objection to the magistrate judge's recommendation should
include how the analysis is wrong, why it was wrong and how de
novo review will obtain a different result on that particular issue.
Merely restating arguments previously presented, stating a
disagreement with a magistrate judge's suggested resolution, or
simply summarizing what has been presented before is not a
specific objection that alerts the district court to the alleged errors
on the part of the magistrate judge.
Martin v. E.W. Scripps Co., No. 1:12CV844, 2013 U.S. Dist. LEXIS 155673, at *5 (S.D. Ohio
Oct. 30, 2013) (citations omitted). “A general objection which does not specify the issues of
contention is tantamount to filing no objections at all and does not satisfy the requirement that
objections be filed.” Allen v. Ohio Dep't of Rehab. & Correction, 202 F.3d 267 (6th Cir. 1999).
Here, Plaintiff’s objections are not clearly set out. Although not required to do so under
Fed. R. Civ. P. 72, this Court has reviewed Plaintiff’s objections in an attempt to identify his
specific objections to the magistrate judge’s analysis. Beyond his constant yet wholly
unsubstantiated refrain of “bias” by the magistrate judge, Plaintiff appears to object as follows:
(A) the magistrate judge erred in striking Plaintiff’s supplemental response to Defendants’ reply
(Doc. 98-1, PageID 1437-38); (B) the magistrate judge erred by relying on a “selective”

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recitation of the facts (id. at 1434); (C) the magistrate judge erred in recommending dismissal of
Plaintiff’s official capacity claims (id. at 1440); and (D) the magistrate judge erred in construing
all facts in favor of the moving party on the deliberate indifference, excessive force, and mail
obstruction claims. The objections will be addressed below.
II.

ANALYSIS
This Court shall consider objections to a magistrate judge's order on a nondispositive

matter and “shall modify or set aside any portion of the magistrate judge's order found to be
clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a). When objections to a magistrate
judge’s report and recommendation are received on a dispositive matter, 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). After review, the district judge “may accept,
reject, or modify the recommended decision; receive further evidence; or return the matter to the
magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
(A) The Magistrate Judge Erred in Striking Plaintiff’s Supplemental Response to
Defendants’ Reply
After Defendants replied to Plaintiff’s summary judgment opposition, Plaintiff filed a
supplemental summary judgment opposition. The magistrate judge correctly observed that
Plaintiff did not seek leave to file additional papers in opposition to summary judgment.
However, Plaintiff argues that the magistrate judge should have considered his supplemental
memorandum, which he submitted based on the belief that his original opposition (Doc. 87) had
been lost in the mail. By Plaintiff’s own admission, the supplemental memorandum was offered
to ensure that “a legal presence be made in objection/opposition to Defendant[’s] motion for

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summary judgment.” (Doc. 98-1, PageID 1437). (See also Doc. 100). However, the original
opposition was received, docketed, and considered by the magistrate judge. Even setting aside
Plaintiff’s failure to seek leave to file post-reply papers, any need for a supplemental
memorandum to ensure that the Court recognized Plaintiff’s formal opposition became moot
once Plaintiff’s original papers were docketed. Accordingly, the Court finds no error in the
magistrate judge’s decision to strike the supplemental memorandum. As such, Defendants’
motion to strike (Doc. 94) is GRANTED, Plaintiff’s motion for leave (Doc. 99) is DENIED,
and the objection is OVERRULED.
(B) The Magistrate Judge Erred by Relying on a “Selective” Recitation of the Facts
Numerous times, Plaintiff challenges the magistrate judge’s recitation of the facts as
incomplete or selective, arguing for example that the magistrate judge “ignored” Defendants’
purported campaign of harassment and retaliation against Plaintiff. (Doc. 98-1, PageID 1434).
On review of the record before the Court, and the magistrate judge’s recitation of the facts, the
Court finds that the magistrate judge properly summarized Plaintiff’s allegations and the
evidence before the Court. Accordingly, the objection is OVERRULED. 1
(C) The Magistrate Judge Erred in Recommending Dismissal of Plaintiff’s Official
Capacity Claims
Defendants are employed by ODRC, and thus any claim against them in their “official
capacity” is the equivalent of a claim against the State of Ohio. Monell v. New York City Dept.
of Soc. Services, 436 U.S. 658. 690 (1978). The magistrate judge’s R&R accurately states the

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The Court also rejects Plaintiff’s suggestion that the magistrate judge “ignored” his first amendment retaliation
claim (Doc. 98-1, PageID 1441), which is baseless. See Doc. 95, PageID 1415.

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law regarding the State’s immunity from suit, absent waiver. (Doc. 95, PageID 1395-96).
Accordingly, this objection is OVERRULED.
(D) The Magistrate Judge Erred by Construing All Facts in Favor of the Moving
Party on the Deliberate Indifference, Excessive Force, and Mail Obstruction
Claims
Plaintiff argues that on each of his claims, the magistrate judge improperly construed all
facts in favor of the moving party. He also argues, in conclusory fashion, that the documentation
on which Defendants rely in their motion for summary judgement was falsified. However, the
magistrate judge did not construe all facts in favor of the moving party. Instead, she held
Plaintiff to his burden in opposing summary judgment. Specifically, once the moving party has
met its burden of production, the burden shifts to the non-moving party “to present sufficient
evidence from which a jury could reasonably find for him.” (Doc. 95, PageID 1406) (citing
Jones v. Muskegon County, 625 F.3d 935, 940 (6th Cir. 2010)). The magistrate judge correctly
observed that “plaintiff relies upon conclusory and wholesale denials in his response to
defendants’ motion.” (Id. at 1407). The undersigned agrees. Accordingly, the remainder of
Plaintiff’s objections are OVERRULED.
III.

CONCLUSION
For the foregoing reasons, the Court ADOPTS the report and recommendation (Doc. 95)

of the magistrate judge. Consistent with the above:
(A) Plaintiff’s motion for leave (Doc. 86) is GRANTED;
(B) Defendants’ motion to strike non-comporting documents (Doc. 92) is DENIED AS
MOOT;
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(C) Defendants’ motion to strike plaintiff’s response to defendants’ reply (Doc. 94) is
GRANTED;
(D) Plaintiff’s motion for leave to file excess pages (Doc. 98) is GRANTED, and
Plaintiff’s objections (Doc. 98-1) are accepted for filing;
(E) Defendants’ motion for summary judgment (Doc. 67) is GRANTED; and
(F) Plaintiff’s objections (Docs. 98-1, 99, 100) are OVERRULED.
Accordingly, this case is closed and terminated from the docket of this Court. The Court
certifies pursuant to 28 U.S.C. §1915(a)(3) that an appeal of this Order would not be taken in
good faith.
IT IS SO ORDERED.
s/Michael R. Barrett
____________________________
United States District Judge

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