Pullen v. Conschafsky et al
ORDER adopting Report and Recommendations re 8 and 31 Report and Recommendation denying as moot 17 Objections and denying 50 Motion for Extension of Time to File and striking 56 Objections. Signed by Judge Michael R. Barrett on 2/8/18. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified on 2/8/2018 (ba) to edit text and regenerate a NEF.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
GARY LEE PULLEN
CONSCHAFSKY, et al.,
) Case No.: 1:16cv894
) Judge Michael R. Barrett
This matter is before the Court on: 1) Plaintiff’s Objection to Report and Recommendation
(Doc. 17); and 2) Plaintiff’s Motion to Extend or Enlarge Time to File Objections to Recommendation
& Report (Doc. 50).
First, on December 2, 2016, the Magistrate Judge issued an Order and Report and
Recommendation dismissing some of Plaintiff’s claims. (See generally Doc. 8). On January 24, 2017,
after being granted an extension of time, Plaintiff objected to the Magistrate Judge’s December 2, 2016
R&R, arguing he had since filed an amended complaint curing any deficiencies related to his original
complaint. (Docs. 17, 19). On June 15, 2017, the Magistrate Judge granted Plaintiff leave to amend
his complaint. (Doc. 31). Accordingly, the Court finds Plaintiff’s objections related to the Magistrate
Judge’s December 2, 2016 R&R are DENIED AS MOOT (Doc. 17) and the Magistrate Judge’s R&R
is ADOPTED IN FULL (Doc. 8).
It is the Magistrate Judge’s June 15, 2017 R&R in which Plaintiff sought an extension of time
to file objections. (Doc. 31). Since seeking an extension, the Court notes that Plaintiff did eventually
file his Objections on December 11, 2017. (Doc. 56). However, prior to that, Plaintiff had already
been granted two lengthy extensions of time, totaling almost four months of additional time to file
objections. In its last Order, the Court indicated it was not convinced Plaintiff had shown good cause
as to why he should be granted additional time; nevertheless, the Court granted Plaintiff’s motion,
allowing Plaintiff until October 27, 2017 to file objections. Importantly, however, the Court warned
Plaintiff no further extensions would be granted absent extraordinary circumstances. (Doc. 47).
While the Court acknowledges that Plaintiff sought an extension on October 13, 2017, before
his latest deadline had passed, the Court is not inclined to grant Plaintiff’s motion, as Plaintiff has
failed to show extraordinary circumstances which would warrant an extension. Plaintiff appears to
make two arguments.
First, he asserts that he was unable to send outgoing mail because there was no mailbox in his
current prison block. In addition to the instant motion, however, Plaintiff managed to file four motions
in the same time frame, on October 12, October 13, November 1, and November 15, respectively. (See
Docs. 48, 49, 51, 52). Thus, Plaintiff’s argument that he was unable to send outgoing mail is
Second, Plaintiff argues he was moved to segregation and therefore did not have his research
materials to prepare his objections. He also appears to suggest that because he could be found guilty of
rule violations, which would warrant additional time in segregation, he could continue to be without his
research materials for the foreseeable future. This argument is likewise unavailing. Before Plaintiff
was placed in segregation, apparently on October 7, 2017, he had almost four months to prepare his
objections. And while the Court acknowledges Plaintiff was engaged in a voluntary hunger strike
during some of that time, the Magistrate Judge correctly explained that “the law does not afford
plaintiff the opportunity to choose between prosecuting his case and participating in a voluntary hunger
strike.” (Doc. 45, PageID 548).
Considering the foregoing, the Court DENIES Plaintiff’s motion (Doc. 50).
Objection to R&R (Doc. 56) is HEREBY STRICKEN.
Accordingly, the Magistrate Judge’s R&R (Doc. 31) is hereby ADOPTED. The Complaint is
DISMISSED WITH PREJUDICE, with the exception of the following claims, which may proceed:
(1) Eighth Amendment failure to protect claims against Defendants Toppins, Conschafsky, Spears, and
Summers based on his allegations that these Defendants failed to protect him during the April 3, 2016
and July 10, 2016 attacks; (2) Eighth Amendment claims against Defendants Nolan, Mahlman, Cool,
Davis, and Erdos based on his claim that he requested protective custody from these Defendants prior
to the second attack; and (3) Eighth Amendment claim for the denial of medical care against
Defendants Dr. Seal, Parsons, Prise, Goodman, Lahr, and Ford.
IT IS SO ORDERED.
s/Michael R. Barrett
Michael R. Barrett, Judge
United States District Court
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