Dodson v. Banks et al

Filing 19

REPORT AND RECOMMENDATIONS re 18 MOTION: The Magistrate Judge RECOMMENDS that Defendants' Motion to Dismiss be GRANTED. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Elizabeth Preston Deavers on 1/17/2013. (er1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHARLES LEWIS DODSON,
Plaintiff,
Civil Action 2:11-cv-164
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

WARDEN EDWARD BANKS, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, Charles Lewis Dodson, an Ohio inmate who is proceeding in forma pauperis
and without the assistance of counsel, brings this civil rights action under 42 U.S.C. § 1983
against Defendants Noble Correctional Institution (“NCI”) Warden Edward Banks and NCI
Health Care Administrator Vanessa Sawyer. Plaintiff also named as Defendants Wexford Health
Sources, Inc.; Wexford Health Services Administrator Sara Seeburger; and Wexford employees
at Noble Correctional Institute (collectively, the “Wexford Defendants”). Plaintiff alleges that
Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth
Amendment to the United States Constitution. The Court previously granted the Wexford
Defendants’ Motion to Dismiss such that only Defendants Banks and Sawyer remain. (ECF No.
15.) This matter is before the United States Magistrate Judge for a Report and Recommendation
on Defendants Banks and Sawyer’s unopposed Motion for Judgment on the Pleadings. (ECF
No. 18.) For the reasons that follow, it is RECOMMENDED that Defendants’ Motion to
Dismiss be GRANTED. (ECF No. 18.)

In their Motion for Judgment on the Pleadings, Defendants Banks and Sawyer assert that
they are entitled to judgment under Federal Rule of Civil Procedure 12(c) because Plaintiff has
failed to plead an Eighth Amendment medical indifference claim. Defendants’ Motion simply
parrots the analysis set in the December 1, 2011 Report and Recommendation. In that Report
and Recommendation, the Undersigned analyzed the allegations set forth in the Complaint and
recommended that the Court grant the Wexford Defendants’ Motion to Dismiss on the grounds
that Plaintiff had failed to state an Eighth Amendment deliberate indifference claim. (ECF No.
13.) On December 29, 2011, the Court adopted the December 1, 2011 Report and
Recommendation. (ECF No. 15.) Defendants alternatively posit that they are entitled to
judgment under 12(c) because Plaintiff failed to allege that they were personally involved in his
medical treatment.
The Undersigned agrees that Defendants Banks and Sawyer are entitled to judgment
under Rule 12(c) because Plaintiff has failed to sufficiently plead an Eighth Amendment medical
indifference claim. As set forth above, the Undersigned analyzed this very issue in the
December 1, 2011 Report and Recommendation, which is incorporated herein its entirety by
reference. Because Plaintiff has failed to state a an Eighth Amendment claim, it is unnecessary
to consider the merits of Defendants’ alternative argument in favor of dismissal.
In sum, for the reasons set forth in the December 1, 2011 Report and Recommendation
(ECF No. 13), it is RECOMMENDED that Defendants’ Motion to Dismiss (ECF No. 18) be
GRANTED.

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PROCEDURE ON OBJECTIONS
If Plaintiff seeks review by the District Judge of this Report and Recommendation, he
may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
Plaintiff is specifically advised that the 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
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).

Date: January 17, 2013

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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