Kendrick v. Erdos et al

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 11 Report and Recommendations; Plaintiff's 14 20 objections are overruled; and 9 Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order is denied without prejudice. Signed by Judge Michael R. Barrett on 3/31/2022. (kkz)(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
Mark Kendrick,
Plaintiff,
v.

Case No. 1:21-cv-00266

Warden Ronald T. Erdos, et al.,

Judge Michael R. Barrett

Defendants.
ORDER
This matter is before the Court on the Magistrate Judge's June 10, 2021, Report
and Recommendation ("R&R") that the Court deny Plaintiff's Motion for Preliminary
Injunction and Temporary Restraining Order. (Doc. 11). Plaintiff filed timely objections
(Doc. 14), and later filed a Motion to Reconsider (Doc. 20) that the Court will deem an
additional objection to the R&R.
I.

STANDARD OF REVIEW
With respect to non-dispositive matters, "[w]hen a pretrial matter not dispositive of

a party's claim or defense is referred to a magistrate judge to hear and decide," and when
the Court receives timely objections to an R&R, "the district judge in the case must
consider timely objections and modify or set aside any part of the order that is clearly
erroneous or is contrary to law." FED. R. CIV. P. 72(a); accord 28 U.S.C. § 636(b)(1)(A).
The "clearly erroneous" standard applies to the magistrate judge's factual findings and
the "contrary to law" standard applies to the legal conclusions. Sheppard v. Warden,
Chillicothe Corr., Inst., 1:12-CV-198, 2013 WL 146364, *5 (S.D. Ohio Jan. 14, 2013).
A factual finding is clearly erroneous when, "although there is evidence to support it, the

reviewing court on the entire evidence is left with a definite and firm conviction that a
mistake has been committed." Id. (quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)). Legal conclusions should be modified or set aside if they "contradict or
ignore applicable precepts of law, as found in the Constitution, statutes, or case
precedent." Id. (quoting Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992)).
II.

ANALYSIS
The Magistrate Judge completed a complete review of the record thus far with

respect to Plaintiff's motion for injunctive relief and the same will not, and need not, be
repeated herein. In short, the Magistrate Judge recommends that the Court deny
Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order as Plaintiff
has not alleged facts sufficient to warrant a preliminary injunction and the remedy that
Plaintiff seeks is more than an injunction maintaining the status quo. (Doc. 11
PageID 212-13).
In his objections, Plaintiff first reiterates his request for "adequate law library
access which," he asserts, "should includ[e] copies, legal clerks, legal books and access
to computer[]s, notary service and a paralegal." (Doc. 14 PageID 261-62). The right of
access to the courts is a fundamental constitutional right. Lewis v. Casey, 518 U.S. 343,
350 (1996) (citing Bounds v. Smith, 430 U.S. 817, 821 (1977)). However, the fundamental
right of access guarantees access to the courts, and does not necessarily guarantee
access to an adequate prison law library. Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.
1985); Leveye v. Metro. Pub. Def.'s Off., 73 F. App'x 792, 794 (6th Cir. 2003). As there is
no "abstract, freestanding right to a law library or legal assistance, an inmate cannot
establish relevant actual injury simply by establishing that his prison's law library or legal

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assistance program is subpar in some theoretical sense." Lewis, 518 U.S. at 351. Rather,
an inmate "must . . . demonstrate that the alleged shortcomings in the library or legal
assistance program hindered his efforts to pursue a legal claim." Id. As of now, there is
no dispute that Plaintiff has access to the law library, and Plaintiff's current request
regarding the alleged inadequacies of that law library do not lead the Court to conclude
that injunctive relief regarding that library is necessary.
Plaintiff next objects to the Magistrate Judge's finding that Plaintiff has not alleged
facts sufficient to warrant a preliminary injunction. (Doc. 14 PageID 263); see (Doc. 11
PageID 212). However, Plaintiff's objections merely repeat his prior arguments found in,
and redirect the Court to, his Motion for Preliminary Injunction and Temporary Restraining
Order. Compare (Doc. 9), with (Doc. 14 PageID 263-67). Reiterating arguments that the
Magistrate Judge considered and rejected and concluding that the Magistrate Judge
erred in finding otherwise, without more, does not aid the Court in its analysis. Cf. Aldrich
v. Bock, 327 F. Supp. 2d 743, 748 (E.D. Mich. 2004) ("The functions of the district court
are effectively duplicated as both the magistrate and the district court perform identical
tasks. The duplication of time and effort wastes judicial resources rather than saving
them, and runs contrary to the purposes of the Magistrates Act.").
In Plaintiff's Motion to Reconsider, that the Court will evaluate as additional
objections, he reiterates his objection to the Magistrate Judge's finding that he has not
alleged facts sufficient to warrant a preliminary injunction. (Doc. 20 PageID 265-96); see
(Doc. 11 PageID 212). However, he again redirects the Court to evidence that the
Magistrate Judge already considered and then reiterates his request for injunctive relief
related to his medical history. (Doc. 20 PageID 296) (citing (Doc. 6 PageID 172) (May 9,

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2018, progress note for a vision examination listing Plaintiff's "medications" as "Albuterol
90 MCG/ACT Aerosol Solution as directed" and "Qvar 80 MCG/ACT Aerosol Solution
1 puff Twice a day")).
In both sets of objections, Plaintiff fails to acknowledge the Magistrate Judge's
finding that injunctive relief is not proper because the remedy that Plaintiff seeks is more
than an injunction maintaining the status quo. (Doc. 11 PageID 213).
Plaintiff's objections do not present any new argument in response to the
recommendation found in the R&R and do not convince the Court that the Magistrate
Judge erred. See Aldrich, 327 F. Supp. 2d. at 747 ("An 'objection' that . . . simply
summarizes what has been presented before, is not an 'objection' as that term is used in
this context."); cf. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health &
Human Servs., 932 F.2d 505, 509 (6th Cir. 1991) (explaining that general disagreements
with the Magistrate Judge fall short of the plaintiff's obligation to make specific objections
to an R&R). In sum, the factual findings in the R&R are not clearly erroneous and the
legal conclusions therein are not contrary to law. See FED. R. CIV. P. 72(a). Plaintiff's
objections do not persuade the Court otherwise. The Court will adopt the R&R in its
entirety.

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III.

CONCLUSION
Based on the foregoing, it is hereby ORDERED that Plaintiff's objections

(Docs. 14, 20) are OVERRULED, the June 10, 2021, R&R (Doc. 11) is ADOPTED, and
Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order (Doc. 9) is
DENIED without prejudice. 1
IT IS SO ORDERED.

_/s Michael R. Barrett______
Michael R. Barrett, Judge
United States District Court

1 The Court is aware that another R&R is pending before it and notes that a separate Order regarding that
R&R and objections thereto is forthcoming. See (Doc. 15) (Sept. 7, 2021 R&R); see (Doc. 30) (timely
objections); (Doc. 33) (untimely objections). Additionally, Plaintiff's Motion for Default Judgment (Doc. 28)
and motions regarding his legal mail and request for documents (Docs. 34, 35, 37) are currently with the
newly assigned Magistrate Judge for additional R&Rs.

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