Haywood v. Fri et al

Filing 41

REPORT AND RECOMMENDATIONS re 36 MOTION for Summary Judgment filed by Defendants Fri, Janis Reiner, Ron Erdos, Cool, Lt. Kaut, C/O Dunlap, Payne, Lt. Esham. IT IS RECOMMENDED THAT Defendants' motion for summary judgment 36 be GRANTED for the reasons stated and alternatively, that judgment be entered in Defendants' favor with prejudice based upon Plaintiff's failure to prosecute, and that this case be CLOSED. Objections to R&R due by 6/2/2020. Signed by Magistrate Judge Stephanie K. Bowman on 5/19/2020. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:18-cv-00361-MWM-SKB Doc #: 41 Filed: 05/19/20 Page: 1 of 3 PAGEID #: 301

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DAYMOND HAYWOOD,
Case No. 1:18-cv-361
Plaintiff,
McFarland, J.
Bowman, M.J.
v.
CORRECTIONAL OFFICER FRI, et al.,
Defendants.
REPORT AND RECOMMENDATION
On May 24, 2018, Plaintiff, currently an inmate at the Southern Ohio Correctional
Facility, initiated this action, alleging violations of his constitutional rights by prison
officials. On December 16, 2019, Defendants filed a motion for summary judgment (doc.
36). This motion, if granted, would be dispositive of all of Plaintiff’s claims against the
Defendants. Plaintiff failed to file any timely response.
Thereafter, on January 23, 2020, the undersigned ordered Plaintiff to “show cause”
on or before February 18, 2020 why the Defendants' motion for summary judgment should
not be construed as unopposed and granted for the reasons stated. (Doc. 39). Plaintiff
did not timely comply with the Courts’ Order and has not filed any response to Defendants’
motion for summary judgment.
Plaintiff failed to comply with the Court’s most recent “show cause” order. The
Defendants' unopposed motion for summary judgment has now been pending for six
months. The undersigned has reviewed that motion and finds it well-reasoned and wellsupported.

Case: 1:18-cv-00361-MWM-SKB Doc #: 41 Filed: 05/19/20 Page: 2 of 3 PAGEID #: 302

Based upon the grounds advocated by the Defendants, they are entitled to
judgment as a matter of law because: (1) Plaintiff failed to exhaust his available
administrative remedies as required by the Prison Litigation Reform Act of 1995 (“PLRA”);
(2) Defendants are entitled to qualified immunity because they acted reasonably under
the circumstances; and (3) Plaintiff failed to provide any evidence that his constitutional
rights were violated. Defendants persuasively argue that Plaintiff has failed to show the
existence of any genuine issue of material fact to support any of the elements of his failure
to protect claim under the Eight Amendment, and that they are each entitled to qualified
immunity in their respective individual capacities.
Last but not least, this case should be dismissed based upon Plaintiff’s failure to
file any timely response to the Court’s “show cause” order, which amounts to a failure to
prosecute. Plaintiff was explicitly warned in the Court’s last order that a failure to respond
“will result” in the recommendation that the Defendants' motion be granted.
Accordingly, IT IS RECOMMENDED THAT Defendants' motion for summary
judgment (Doc. 36) be GRANTED for the reasons stated and alternatively, that judgment
be entered in Defendants' favor with prejudice based upon Plaintiff’s failure to prosecute,
and that this case be CLOSED.1

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

1

Also before the Court is Defendants’ motion to dismiss for lack of prosecution. Consistent with this
Report and Recommendation Defendants’ motion to dismiss (Doc.40) should be DENIED as MOOT.

Case: 1:18-cv-00361-MWM-SKB Doc #: 41 Filed: 05/19/20 Page: 3 of 3 PAGEID #: 303

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DAYMOND HAYWOOD,
Case No. 1:18-cv-361
Plaintiff,
McFarland, J.
Bowman, M.J.
v.
CORRECTIONAL OFFICER FRI, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on
timely motion by either side for an extension of time. All objections shall specify the
portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in
support of the objections. A party shall respond to an opponent’s objections within
FOURTEEN DAYS after being served with a copy of those objections. 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).