Strange v. Warden Chillicothe Correctional Institution

Filing 3

ORDER & REPORT AND RECOMMENDATIONS re 2 Complaint: Plaintiff's application for in forma pauperis is GRANTED. However it is RECOMMENDED that the action be DISMISSED for lack of subject matter jurisdiction. Objections to R&R due by 8/15/2005. Signed by Judge Norah McCann King on 7/28/05. (er )

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Strange v. Warden Chillicothe Correctional Institution Doc. 3 Case 2:05-cv-00737-GCS-NMK Document 3 Filed 08/01/2005 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION MONTECA D. STRANGE, Plaintiff, vs. CHILLICOTHE CORRECTIONAL INST., Defendant. ORDER AND REPORT AND RECOMMENDATION Plaintiff, a state inmate, seeks leave to proceed in forma Civil Action 2:05-cv-737 Judge Smith Magistrate Judge King pauperis. Plaintiff's application is GRANTED. All judicial officers who render services in this action shall do so as if the costs had been prepaid. However, having reviewed the complaint as required by 28 U.S.C. 1915(e), 1915A, the Court concludes that it lacks jurisdiction to proceed. In this civil rights action, plaintiff alleges that "[his] mental thoughts are being suppressed." Complaint, at p.5. Moreover, although he was given "two small white pills" for a medical condition, when he returned to pick up his medication the next day, "the pills were not the same pills and the doctor ask[ed] me if I had night sweats." Id., at p.6. Plaintiff has lost weight and feels weak. Id. The only defendant named in the action is the Chillicothe Correctional Institution. By operation of the Eleventh Amendment to the United States Constitution, this Court lacks jurisdiction to consider civil rights claims under 42 U.S.C. 1983 against the state or its agencies without the state's consent. See Alabama v. Pugh, 438 U.S. 781 Case 2:05-cv-00737-GCS-NMK Document 3 Filed 08/01/2005 Page 2 of 2 (1978). It is therefore RECOMMENDED that the action be dismissed for lack of subject matter jurisdiction. If any party seeks review by the District Judge of this Report and Recommendation, that party may, within ten (10) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 636(b)(1); F.R. Civ. P. 72(b). 28 U.S.C. Response to objections must be filed F.R. Civ. within ten (10) days after being served with a copy thereof. P. 72(b). The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). July 28, 2005 s/Norah McCann King Norah McCann King United States Magistrate Judge 2

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