Harris v. Erdos et al

Filing 36

ORDER adopting 22 Report and Recommendation in full. The Court thus denies 14 Harris's Motion for Leave to File an Amended Complaint to the extent it seeks to add a retaliation claim against Defendants Erdos and Galloway, and likewise deni es 15 Harris's Motion for Preliminary Injunction and Temporary Restraining Order. Signed by Judge Douglas R. Cole on 1/6/21. (sct)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:20-cv-00336-DRC-KLL Doc #: 36 Filed: 01/06/22 Page: 1 of 5 PAGEID #: 253

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CORNELIUS L. HARRIS,
Plaintiff,
Case No. 1:20-cv-336
JUDGE DOUGLAS R. COLE
Magistrate Judge Litkovitz

v.
RONALD ERDOS, et al.,
Defendants.

ORDER
This cause comes before the Court on the Magistrate Judge’s May 11, 2021,
Order and Report and Recommendation (“R&R”) (Doc. 22).1 The Magistrate Judge
recommends that the Court (1) deny Plaintiff Cornelius Harris’s Motion for Leave to
File an Amended Complaint (Doc. 14) to the extent it seeks to add a retaliation claim
against Defendants Erdos and Galloway, and (2) deny Harris’s Motion for
Preliminary Injunction and Temporary Restraining Order (Doc. 15). For the reasons
stated more fully below, the Court ADOPTS the Report and Recommendation (Doc.
22) in full. Accordingly, the Court DENIES Harris’s Motion for Leave to File an
Amended Complaint (Doc. 14) to the extent it seeks to add a retaliation claim
against Defendants Erdos and Galloway, and likewise DENIES Harris’s Motion
for Preliminary Injunction and Temporary Restraining Order (Doc. 15).
To start, the R&R advised Harris and Defendants that failing to object within
14 days could result in forfeiture of rights on appeal, which includes the right to

In addition to the recommendations addressed in this Order, the R&R disposed of a number
of discovery-related motions that the Court does not address.
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District Court review. (See Doc. 22, #167). See also Thomas v. Arn, 474 U.S. 140, 152
(1985) (“There is no indication that Congress, in enacting § 636(b)(1)(C), intended to
require a district judge to review a magistrate’s report to which no objections are
filed.”); Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019) (noting “fail[ure] to file
an objection to the magistrate judge’s R&R … is forfeiture”); 28 U.S.C. § 636(b)(1)(C).
Accordingly, the original deadline for objection was May 25, 2021. Defendants filed
no objections, nor did they seek an extension of the time to object. As to Harris, the
Magistrate Judge twice extended his deadline to object, the most recent extension
resulting in a deadline of October 21, 2021. (See Docs. 24, 30). That date has passed,
and Harris neither objected nor sought additional time to do so.
Nonetheless, although no party objected, the advisory committee notes to
Federal Rule of Civil Procedure 72(b) suggest that the Court still must “satisfy itself
that there is no clear error on the face of the record in order to accept the
recommendation.” See also Mavrakis v. Warden, No. 5:17-cv-2398, 2018 WL 4104187,
at *3 (N.D. Ohio Aug. 28, 2018) (reviewing for clear error absent an objection to a
Magistrate Judge’s R&R); Mason v. Comm’r of Soc. Sec., No. 1:10 CV 2456, 2011 WL
3022016, at *1 (N.D. Ohio July 22, 2011) (same); Malone v. Nike, No. 2:18-cv-02505TLP-cgc, 2020 WL 4106316, at *2 (W.D. Tenn. July 20, 2020) (same).
The Court has reviewed the R&R and determined that it does not contain “clear
error on [its] face” with respect to either of its two recommendations. Fed. R. Civ. P.
72(b) (advisory committee notes).

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First, the R&R recommends denying Harris’s Motion for Leave to File an
Amended Complaint (Doc. 14), to the extent that the proposed amended complaint
seeks to state a retaliation claim against Defendants Erdos and Galloway. (Doc. 22,
#162). Harris filed this motion on February 11, 2021, attaching the proposed amended
complaint. The proposed amendments are addressed to two topics. First, Harris adds
allegations regarding the state of his cell in support of his already existing claims.
(See id. at #160; Proposed Am. Compl., Doc. 14-1). Second, the proposed amended
complaint also appears to include a new retaliation claim against certain Defendants.
Specifically, it alleges that, in retaliation for Harris filing complaints and grievances,
Erdos and Galloway ordered maintenance to bolt a metal plate on the bottom of
Harris’s cell door to “further restrict[] the oxygen” in his cell. (Proposed Am. Compl.,
Doc. 14-1, #116).
In reaching its recommendation, the R&R correctly noted that leave to amend
may be denied where the amended complaint could not survive a motion to dismiss.
(R&R, Doc. 22, #161 (citing Miller v. Calhoun County, 408 F.3d 803 (6th Cir. 2005))).
Here, although the proposed amended complaint alleges the “ultimate fact” of
retaliation, it fails to include factual support allowing the Court to plausibly infer
that Erdos and Galloway acted in response to Harris’s protected conduct. (See id. at
#161–62). Because a First Amendment retaliation claim requires that the prisoner’s
protected conduct motivate the alleged adverse action, the R&R found that Harris’s
failure to include factual allegations to that effect would be fatal to such a claim. The
Court finds no clear error in the Magistrate Judge’s determination that Harris’s bare

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allegation does not meet federal pleading standards. (See id. at #162 (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555–57 (2007))).
Second, the R&R recommends denying Harris’s Motion for Preliminary
Injunction and Temporary Restraining Order (Doc. 15). (R&R, Doc. 22, #165). Harris
filed that motion on March 25, 2021, arguing that prison officials have harassed and
retaliated against him by withholding his personal property and legal materials and
by failing to release him from punitive segregation. (Mot. for Prelim. Inj. and TRO,
Doc. 15, #125–27). He asks that the Court enjoin this behavior and order his release
from punitive segregation as well as the return of his property. (Id. at #127).
Preliminary injunctive relief, however, is an “extraordinary remedy,” which
requires “a clear showing that the plaintiff is entitled to such relief.” (R&R, Doc. 22,
#164–65 (quoting S. Glazer’s Distributors of Ohio, LLC v. Great Lakes Brewing Co.,
860 F.3d 844, 849 (6th Cir. 2017))). Courts analyze a plaintiff’s preliminary injunction
showing with a well-established four-factor balancing test. (Id. at #164). These factors
include the movant’s likelihood of success, the movant’s irreparable harm, the
possible harm to third parties, and the effect on the public interest. (Id. (citing Leary
v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000))).
Here, as the R&R observed, Harris failed to even attempt to make the
necessary showing with respect to these four factors. (Id. at #165). Moreover, the R&R
noted that the injury claimed in Harris’s motion bears no relationship to the conduct
asserted in his Complaint, which the Sixth Circuit has indicated is grounds for denial.
(Id. (citing Colvin v. Caruso, 605 F.3d 282, 300 (6th Cir. 2010))). The Court thus finds

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no clear error in the Magistrate Judge’s recommendation of denial, particularly given
that the propriety of preliminary injunctive relief is “a decision left to the sound
discretion of the district court.” Colvin, 605 F.3d at 299 (quoting Deja Vu of
Cincinnati, L.L.C. v. Union Twp. Bd. of Trs., 411 F.3d 777, 782 (6th Cir. 2005)).
Accordingly, the Court ADOPTS the Report and Recommendation (Doc. 22) in
full. The Court thus DENIES Harris’s Motion for Leave to File an Amended
Complaint (Doc. 14) to the extent it seeks to add a retaliation claim against
Defendants Erdos and Galloway, and likewise DENIES Harris’s Motion for
Preliminary Injunction and Temporary Restraining Order (Doc. 15).
SO ORDERED.
January 6, 2021
DATE

DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

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