Thomas v. Erdos et al

Filing 93

ORDER ADOPTING ADOPTING REPORT AND RECOMMENDATIONS - The Clerk shall enter judgment accordingly, whereupon this case is TERMINATED on the docket of this Court. Signed by Judge Timothy S. Black on 11/20/2018. (bjc)(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 T. THOMAS,
Plaintiff,
vs.
RON ERDOS, et al.,
Defendants.

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Case No. 1:16-cv-793
Judge Timothy S. Black
Magistrate Judge Karen L. Litkovitz

DECISION AND ENTRY
ADOPTING THE REPORTS AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE
AND TERMINATING THIS CASE IN THIS COURT
This case is before the Court pursuant to the Order of General Reference to United
States Magistrate Judge Karen L. Litkovitz. Pursuant to such reference, the Magistrate
Judge reviewed the pleadings and submitted several Reports and Recommendations.
A.

Dispositive Motions.

On August 3, 2018, the Magistrate Judge entered a Report and Recommendation
recommending that the motion to dismiss filed by Defendants Irvin and Scott (Doc. 72)
be granted, Plaintiff’s motion for default judgment (Doc. 83) be denied, Plaintiff’s
motion for partial summary judgment against Defendant Oppy (Doc. 58) be denied, and
Defendants’ motion for summary judgment (Doc. 72) be granted. (Doc. 84).
Plaintiff filed a timely objection to the Magistrate Judge’s Report and

Recommendation. (Doc. 85).1 The objection is not well-taken. Plaintiff’s objection
offers nothing to rebut the Magistrate Judge’s correct conclusions that Defendants Scott
and Irvin should be dismissed for lack of service pursuant to Fed. R. Civ. P. 4(m),
Plaintiff failed to properly exhaust some of his claims, and the exhausted claims fail as a
matter of law. Plaintiff argues his claims should not be dismissed for failure to exhaust
because requiring inmates to submit grievances to staff at the correctional facility prior to
filing a lawsuit against staff members creates a conflict of interest. This argument is not
availing, as exhaustion of administrative remedies is mandatory under the PLRA and
unexhausted claims cannot be brought in court. See Jones v. Bock, 549 U.S. 199, 211
(2007) (citation omitted).
On November 1, 2018, the Magistrate Judge entered a Supplemental Report and
Recommendation, clarifying that Plaintiff’s claims against Defendants Combs and Nolan
should also be dismissed without prejudice for failure to exhaust administrative remedies.
(Doc. 91).
Plaintiff filed a timely objection. (Doc. 92). Plaintiff does not object to the
dismissal of Defendant Nolan, as “Plaintiff cannot find any proof that he filed a grievance
on Nolan.” (Id. at 2). However, the objection argues that Plaintiff exhausted claims
against Combs in grievance No. 5-16-000040. (Id.). Yet the objection to the
Supplemental Report and Recommendation is not well-taken as the objection does not
identify any grievance filed (or exhausted) against Defendant Combs. Instead, the

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Plaintiff also filed a motion to supplement his objection (Doc. 89), which is GRANTED. The
Court has considered Plaintiff’s supplement in analyzing his objection.

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exhibits attached to the objection only indicate that Plaintiff mentioned conduct by
Defendant Combs while being interviewed in connection with his grievance against
another defendant. (Doc. 92-1). The objection offers no affirmative evidence to rebut
Defendants’ sworn statements that Plaintiff did not exhaust a grievance against
Defendant Combs. (See Doc. 72-4).
B.

Other Pretrial Motions.

Also pending before the Court are several other pretrial motions. First, Plaintiff
filed multiple motions for default judgment (Docs. 16, 42) that the Magistrate Judge
properly recommended denying in light of the fact that Plaintiff had not obtained an entry
of default (a prerequisite to default judgment) and because Defendants were not in default
(Docs. 19, 43). Plaintiff did not object to the Magistrate Judge’s recommendations that
his motions for default judgment be denied.
Second, Plaintiff filed two prior motions for summary judgment (Docs. 38, 51)
that the Magistrate Judge properly recommended denying as premature in light of the fact
that the parties were still conducting discovery (Docs. 55, 43). Plaintiff did not object to
the Magistrate Judge’s recommendations that his first two motions for summary
judgment be denied as premature.
Third, Defendant Cool filed a prior motion to dismiss (Doc. 44), that the
Magistrate Judge properly recommended denying (Doc. 63). No objection was filed.
Fourth, Plaintiff filed a motion for preliminary injunction (Doc. 64) that the
Magistrate Judge properly recommended denying, in part, on the grounds that Plaintiff
had not established a likelihood of success on his claims (Doc. 69). Plaintiff did not
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object to the Magistrate Judge’s recommendation that his motion for preliminary
injunction be denied.
As required by 28 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 Reports and Recommendations should be and are hereby adopted in
their entirety.
Accordingly:
1.

The August 3, 2018, Report and Recommendation (Doc. 84) and the
November 1, 2018, Supplemental Report and Recommendation (Doc. 91)
are ADOPTED;

2.

Plaintiff’s motion to supplement his objection to the August 3, 2018 Report
and Recommendation (Doc. 89) is GRANTED;

3.

Plaintiff’s objections (Docs. 85, 92) are OVERRULED;

4.

The other various pre-trial Reports and Recommendations submitted by the
Magistrate Judge (Docs. 19, 43, 55, 63, and 69) are ADOPTED;

5.

Defendant Cool’s first motion to dismiss (Doc. 44) is DENIED;

6.

The motion to dismiss filed by Defendant Irvin and Scott (Doc. 72) is
GRANTED and Plaintiff’s claims against those Defendants are
DISMISSED under Fed. R. Civ. P. 4(m) for lack of service;

7.

Plaintiff’s motions for default judgment (Docs. 16, 42, and 83) are
DENIED;

8.

Plaintiff’s motions for summary judgment (Docs. 38, 51, and 58) are
DENIED;

9.

Defendants’ motion for summary judgment (Doc. 72) is GRANTED;

10.

Plaintiff’s claims against Defendants Hale, Fri and Hutchinson related to
the alleged April 2016 incidents are DISMISSED with prejudice;
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11.

Plaintiff’s remaining claims against Defendants Hale, Fri and Hutchinson,
as well as Plaintiff’s claims against Defendants Cool, Miller, Dawson,
Mahlman, Oppy, Nolan and Combs are DISMISSED without prejudice
for failure to exhaust administrative remedies;

12.

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, and Plaintiff is denied leave to
appeal in forma pauperis. Plaintiff may apply to proceed in forma pauperis
in the Court of Appeals; and

13.

The Clerk shall enter judgment accordingly, whereupon this case is
TERMINATED on the docket of this Court.

IT IS SO ORDERED.
Date:

11/20/18

Timothy S. Black
United States District Judge

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