Thomas v. Erdos et al

Filing 55

ORDER that defendant Oppy's 53 Motion to Stay the deadline to respond to plaintiff's motion for partial summary judgment is Granted. REPORT AND RECOMMENDATION that plaintiff's 51 Motion for partial summary judgment be Denied wit hout prejudice to resubmission after discovery in this case has been completed. ( Objections to R&R due by 9/22/2017). Signed by Magistrate Judge Karen L. Litkovitz on 9/8/2017. (art)(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
JONATHAN THOMAS,
Plaintiff,

Case No. 1:16-cv-793
Black, J.
Litkovitz, M.J.

vs.
RON ERDOS, et al.,
Defendants.

ORDER AND REPORT
AND RECOMMENDATION

Plaintiff, an inmate at the Southern Ohio Correctional Facility (SOCF), brings this action
under 42 U.S.C. § 1983 for violations of his civil rights. This matter is before the Court on
plaintiff’s motion for partial summary judgment (Doc. 51) and defendant J. Oppy’s motion to
stay the deadline for responding to plaintiff’s summary judgment motion (Doc. 53), which is
unopposed.
I. Procedural background
On November 2, 2016, the Court granted plaintiff leave to proceed in forma pauperis
(Doc. 8) and his complaint was filed on the Court’s docket (Doc. 9). The Court granted plaintiff
leave to file a supplemental complaint on that same date. (Doc. 11). On sua sponte review of
the complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), the Court determined that
plaintiff could proceed on certain claims against defendants Hale, Fri, Miller, Hutchinson,
Dawson, Combs, Oppy, Mahlman, Noland and Cool, but the Court dismissed other claims
against these defendants and all claims against other individuals plaintiff had named as
defendants. (Docs. 11, 13). Plaintiff was granted leave to supplement his complaint a second
time to add claims and to include Officers Scott and Irvin as new defendants. (Docs. 19, 24).
The Court granted plaintiff a 14-day extension to submit copies of his complaints and process
forms for these defendants. (Doc. 24). On February 2, 2017, the Court stayed discovery in this

matter pending further Court order because plaintiff had only recently named new defendants to
the complaint and the Court had granted plaintiff additional time to perfect service. (Doc. 25).
On March 3, 2017, the Court ordered plaintiff to show cause by March 17, 2017, why this
case should not be dismissed as to newly-named defendants Officers Scott and Irvin for failure to
comply with the Court’s Order dated February 1, 2017, giving plaintiff 14 days to submit copies
of his complaints and process forms for these defendants. (Doc. 28). The Court also extended
the responsive pleading deadline to March 22, 2017 to enable defendants to file one responsive
pleading to both the original and supplemental complaints. On March 17, 2017, summons were
issued as to defendants Scott and Irvin (Doc. 33) but were returned unexecuted with a letter
dated April 12, 2017, explaining that SOCF could not deliver the summons without additional
identifying information. (Doc. 40).
By Order dated May 18, 2017, the Court denied plaintiff’s motion to extend the March
17, 2017 deadline for issuing summons on defendants Scott and Irvin (Doc. 35) as moot because
summons had been issued but were returned unexecuted. (Doc. 43). The Court ordered plaintiff
to file a motion to issue service, including United States Marshal and summons forms, for
“Officer Irvin” and “Officer Scott” setting forth with more particularity the identities of the two
officers, if and when he discovers the identities of these defendants through discovery. (Id.).
Plaintiff was advised that no service would be issued on these defendants unless he complied
with the Court’s Order. The Court granted defendants’ motion to stay the deadline for
responding to plaintiff’s motion for partial summary judgment on his Eighth Amendment claims
for damages against defendant J. Oppy (Doc. 41), which plaintiff had filed on April 13, 2017, in
light of the procedural posture of the case. (Doc. 38). The Court recommended that plaintiff’s
motion for partial summary judgment be denied without prejudice to resubmission “after

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discovery has been completed in this case.” (Doc. 43 at 4).
A Calendar Order subsequently was issued which set a discovery deadline of December
7, 2017 and a dispositive motion deadline of January 8, 2018. (Doc. 47). Although discovery
has not yet been completed, plaintiff filed a second motion for partial summary judgment on his
Eighth Amendment claims for damages against defendant Oppy on July 13, 2017. (Doc. 51).
II. Motion to stay
Defendant Oppy moves to stay the deadline to respond to plaintiff’s motion for partial
summary judgment under Fed. R. Civ. P. 56(d), which allows the Court to take certain action
“[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present
facts essential to justify its opposition. . . .” (Doc. 53). Defendant Oppy has submitted his
counsel’s declaration in support of the motion. (Doc. 53-1, Declaration of Zachary R. Huffman).
The Court will grant defendant’s motion based on the law and reasons set forth in the prior Order
and Report and Recommendation granting defendants’ motion to stay and recommending that
plaintiff’s motion for summary judgment on his claims against Oppy be denied without prejudice
to resubmission after discovery has been completed. (Doc. 43).
IT IS THEREFORE ORDERED THAT:
Defendant Oppy’s motion to stay the deadline to respond to plaintiff’s motion for partial
summary judgment (Doc. 53) is GRANTED.
IT IS THEREFORE RECOMMENDED THAT:
Plaintiff’s motion for partial summary judgment (Doc. 51) be DENIED without prejudice
to resubmission after discovery in this case has been completed.
Date: 9/8/2017

s/Karen L. Litkovitz
Karen L. Litkovitz
United States Magistrate Judge
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JONATHAN THOMAS,
Plaintiff,

Case No. 1:16-cv-793
Black, J.
Litkovitz, M.J.

vs.
RON ERDOS, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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