Surgenor v. Moore et al

Filing 79

DECISION AND ENTRY adopting Report and Recommendations re 74 Report and Recommendations; Ordering Plaintiff to File Notice Correcting or Confirming his Address; and granting in part and denying in part 51 Motion to Dismiss for Failure to State a Claim;. Signed by Judge Timothy S. Black on 3/15/19. (rrs)(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.
GARY MOORE, et al.,
Defendants.

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

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION (Doc. 74); AND
ORDERING PLAINTIFF TO FILE NOTICE
CORRECTING OR CONFIRMING HIS ADDRESS
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, on February 8, 2019, submitted a Report and
Recommendation (Doc. 74). No objections were filed.1
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 finds that the
Report and Recommendation should be and is hereby adopted in its entirety.

The Clerk’s Office timely served, by U.S. Mail, a copy of the Report and Recommendation on
Plaintiff Surgenor, who appears in this case pro se. By all appearances, the document was
delivered successfully. Subsequently, however, the Clerk’s Office’s attempt to serve the
Calendar Order (Doc. 76) was unsuccessful and the mail was returned as undeliverable (Doc.
78). Regardless, the Court finds no basis to conclude that Plaintiff Surgenor did not receive the
Report and Recommendation. Moreover, it is Plaintiff’s responsibility to keep the Court
apprised of his current address and contact information. And Plaintiff has amply demonstrated
his awareness of this fact and ability to comply, as evidenced by the six prior occasions on which
Plaintiff has given notice regarding a new address. (Docs. 34, 45, 46, 62, 63, 73).
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Accordingly:
1.

The Report and Recommendation (Doc. 74) is ADOPTED;

2.

Defendants’ motion to dismiss the complaint (Doc. 51) is GRANTED in
part and DENIED in part, as follows:
a. Defendants’ motion to dismiss is GRANTED for failure to exhaust
administrative remedies under 42 U.S.C. § 1997e as to Plaintiff’s
Eighth Amendment claim against Defendants Ley, Holley, and
Berry and Plaintiff’s First Amendment retaliation claim against
Defendant Cherryholmes.
Accordingly, these claims are
DISMISSED without prejudice;
b. Defendants’ motion to dismiss is GRANTED for failure to state a
claim for relief as to Plaintiff’s First Amendment retaliation claim
against Defendant Bell.
Accordingly, this claim against
Defendant Bell is DISMISSED.
c. Defendants’ motion to dismiss is DENIED as to Plaintiff’s First
Amendment retaliation claim against Defendants Berry and
Saylor.

Additionally, the Court hereby ORDERS that Plaintiff shall have forty-five (45)
days from the date of this Order to file a notice either apprising the Court of his new
address or alternatively confirming his residence at the same address. Failure to file a
notice, as hereby ordered, will result in the dismissal of Plaintiff’s case for want of
prosecution.
IT IS SO ORDERED.
Date:

3/15/19

s/ Timothy S. Black
Timothy S. Black
United States District Judge

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