Surgenor v. Moore et al

Filing 36

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The Reports and Recommendations (Docs. 4, 12) and Supplemental Report and Recommendations (Doc. 13) are ADOPTED; Plaintiffs Objections (Doc. 26) are OVERRULED; Plaintiffs motion for preliminary injunctive relief (Doc. 9) is DENIED;The claims asserted in Plaintiffs complaint (Doc. 3) are DISMISSED; Plaintiffs motion to amend the complaint (Doc. 10) is GRANTED to the extent it seeks leave to correct the name of Defendant Moore to Mohr, and to the extent it seeks leave to add: (A) Plaintiffs Eighth Amendment claim regarding deprivation of meals by Defendants Berry, Holley and Ley;(B) Plaintiffs First Amendment retaliation claim against Defendants Bell, Berry, and Saylor, and (C) Plaintiffs First Amendment claim alleging a violation of Plaintiffs right to freely exercise his Christian religion against Defendant Cherry Holmes;to the extent Plaintiffs motion to amend the Complaint (Doc. 10) seeks to add additional claims and/or additional defendants, it is DENIED. Signed by Judge Timothy S. Black on 12/27/2017. (jlw)(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
JAMES SURGENOR,
Plaintiff,
vs.

Case No. 1:16-cv-1179
Judge Timothy S. Black
Magistrate Judge Karen L. Litkovitz

GARY MOORE, et al.,
Defendants.
DECISION AND ENTRY
ADOPTING THE REPORTS AND RECOMMENDATIONS (Docs. 4, 12)
AND THE SUPPLEMENTAL REPORT AND RECOMMENDATIONS (Doc. 13)
OF THE UNITED STATES MAGISTRATE JUDGE
AND OVERRULING PLAINTIFF’S OBJECTIONS (Doc. 26)
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 the
United States Magistrate Judge Karen L. Litkovitz. Pursuant to such reference, the
Magistrate Judge reviewed the pleadings filed with this Court and issued two Reports and
Recommendations (Docs. 4, 12) as well as a Supplemental Report and Recommendations
(Doc. 13).

Plaintiff filed untimely objections (“Objections”) (Doc. 26). 1
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 the Reports and Recommendations (Docs. 4, 12) and the Supplemental
Report and Recommendations (Doc. 13) should be and are hereby ADOPTED in their
entirety. Accordingly:
1. The Reports and Recommendations (Docs. 4, 12) and Supplemental Report
and Recommendations (Doc. 13) are ADOPTED;
2. Plaintiff’s Objections (Doc. 26) are OVERRULED;
3. Plaintiff’s motion for preliminary injunctive relief (Doc. 9) is DENIED;
4. The claims asserted in Plaintiff’s complaint (Doc. 3) are DISMISSED;

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Plaintiff’s Objections are not well taken. Initially, the Objections—which were required to be
filed by June 22, 2017, but were not filed until July 12, 2017—are untimely, and fail as a matter
of law. See Jones v. Warden, Ross Corr. Inst., 2013 U.S. Dist. LEXIS 169658, at * 4 (S.D. Ohio
Dec. 2, 2013) (“failure to file timely objections not only waives the right to de novo review of a
Magistrate’s Report and Recommendation, but dispenses with the need for the district court to
conduct any review.”). In any event, the Objections fail on the merits. First, the Objections
argue that Plaintiff properly stated an Eighth Amendment claim premised on Defendants’
allegedly discriminatory, threatening, and derogatory comments, but the Magistrate Judge
correctly explained that conduct does not violate the Constitution. (Doc. 13 at 3); see also
Johnson v. Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004) (“harassment and verbal abuse . . . do not
constitute the type of infliction of pain that the Eighth Amendment prohibits.”). Second, the
Objections argue that Defendants Mohr, Schweitzer, and Luneke should be liable in their
supervisory capacities, but the Magistrate Judge correctly held that respondeat superior does not
impute 28 U.S.C. § 1983 liability onto supervisory personnel. (Doc. 4 at 9) (citing Wingo v.
Tenn. Dep’t of Corr., 499 F. App’x 453, 455 (6th Cir. 2012)).

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5. Plaintiff’s motion to amend the complaint (Doc. 10) is GRANTED to the
extent it seeks leave to correct the name of Defendant Moore to “Mohr,” and to
the extent it seeks leave to add: (A) Plaintiff’s Eighth Amendment claim
regarding deprivation of meals by Defendants Berry, Holley and Ley;
(B) Plaintiff’s First Amendment retaliation claim against Defendants Bell,
Berry, and Saylor, and (C) Plaintiff’s First Amendment claim alleging a
violation of Plaintiff’s right to freely exercise his Christian religion against
Defendant Cherry Holmes;
6. To the extent Plaintiff’s motion to amend the Complaint (Doc. 10) seeks to add
additional claims and/or additional defendants, it is DENIED.
IT IS SO ORDERED.

Date: 12/22/17

_______________________
Timothy S. Black
United States District Judge

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