Hurst v. Ohio Department of Rehabilitation and Correction et al

Filing 6

ORDER, REPORT AND RECOMMENDATION : It is recommended that defendant Department of Rehabilitation and Correction be dismissed from this action re 4 Complaint and DENYING 5 MOTION to Appoint Counsel. Objections to R&R due by 12/27/2011. Signed by Magistrate Judge Norah McCann King on 12/07/11. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK E. HURST,
Plaintiff,
vs.

Civil Action 2:11-CV-1090
Judge Smith
Magistrate Judge King

OHIO DEPARTMENT OF REHABILITATION
AND CORRECTION, et al.,
Defendants.
ORDER
REPORT AND RECOMMENDATION
Plaintiff, a state inmate, brings this civil rights action alleging
that he was denied medical care in contravention of his constitutional
rights.

This matter is now before the Court for the initial screen of

the Complaint required by 28 U.S.C. §§1915(e), 1915A, and on plaintiff’s
motion for the appointment of counsel.
The Complaint names as defendants a number of state employees as
well as the Ohio Department of Rehabilitation and Correction. This state
agency is absolutely immune from suit in this Court by virtue of the
Eleventh Amendment to the United States Constitution.

See Beil v. Lake

Erie Correction Records Dept., 282 Fed. Appx. 363, 2008 WL 2434738 (6th
Cir. June 13, 2008). See also Regents of Univ. of Calif. v. Doe, 519 U.S.
425, 429 (1997)(Eleventh Amendment sovereign immunity applies not only
to

the

states

themselves

instrumentalities”).

but

also

to

“state

agents

and

Moreover, a state agency is not a “person” subject

to suit under 42 U.S.C. §1983.
491 U.S. 58, 70-71 (1989).

Will v. Michigan Dep’t of State Police,

It is therefore RECOMMENDED that defendant

Department of Rehabilitation and Correction be dismissed from this
action.

Plaintiff’s motion for the appointment of counsel is DENIED without
prejudice to renewal at a later stage of the proceedings.
The Court concludes that, at this juncture, the action can proceed
against all named defendants except the defendant state agency.

The

United States Marshal is DIRECTED to effect service of process by
certified mail on all the named defendants, who shall have forty-five
(45) days after service of process to respond to the Complaint.
If any party seeks review by the District Judge of this Report and
Recommendation, that party 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 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

within fourteen (14) days after being served with a copy thereof.

F.R.

Civ. 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).
s/Norah McCann King
Norah McCann King
United States Magistrate Judge
December 7, 2011

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