Rutherford v. Lamneck et al

Filing 51

ORDER adopting report and recommendation re 49 . Motion for summary judgment re 46 is granted in part and denied in part. Signed by Judge James L Graham on 6/6/12. (rew )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KENNETH RUTHERFORD,
Plaintiff,
Civil Action 2:09-cv-914
Judge James L. Graham
Magistrate Judge E.A. Preston Deavers

v.

GINNY LAMNECK, et al.,
Defendants.

ORDER
Plaintiff, Kenneth Rutherford, who is proceeding without the assistance of counsel, brings
this civil rights action under 42 U.S.C. § 1983, alleging that Defendants utilized excessive force
against him in violation of his rights under the Eighth Amendment. This matter is before the
Court for consideration of the May 7, 2012 Report and Recommendation of the United States
Magistrate Judge, to whom this case was referred pursuant to 28 U.S.C. § 636(b). (ECF No. 49).
The Magistrate Judge recommended that Defendants’ Motion for Summary Judgment be granted
in part and denied in part.
The Report and Recommendation specifically advises the parties that the failure to object
to the Report and Recommendation within fourteen days of the Report results in a “waiver of the
right to de novo review . . . by the District Judge and waiver of the right to appeal the judgment
of the District Court.” (Report and Recommendation 18–19, ECF No. 49.) The time period for
filing objections to the Report and Recommendation has expired. Neither party has not objected
to the Report and Recommendation.

The Court has reviewed the Report and Recommendation. Noting that no objections have
been filed and that the time for filing such objections has expired, the Court ADOPTS the Report
and Recommendation. (ECF No. 49.) Accordingly, Defendants’ Motion for Summary Judgment
is GRANTED IN PART AND DENIED IN PART. (ECF No. 46). Plaintiff’s claims against
Defendants Fisher and Spezzalli are DISMISSED WITHOUT PREJUDICE for failure to
comply with the Prison Litigation Reform Act’s exhaustion requirements; Plaintiff’s state-law
assault and battery claims are DISMISSED for lack of jurisdiction; and the remainder of
Defendants’ Motion is DENIED, such that Plaintiff may proceed on his Eighth Amendment
excessive force claims against Defendant Cheadle.
IT IS SO ORDERED.

S/ James L. Graham
James L. Graham
United States District Judge
Date: June 6, 2012

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