Moore v. Cruse et al

Filing 28

REPORT AND RECOMMENDATION it is recommended that re 18 motion to dismiss for failure to state a claim be GRANTED. Objections to R&R due by 12/3/2012. Signed by Magistrate Judge Norah McCann King on 11/14/12. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN PATRICK MOORE,
Plaintiff,
Civil Action 2:12-cv-609
Judge Marbley
Magistrate Judge King

vs.

BRENT CRUSE, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, an inmate formerly incarcerated at the Chillicothe
Correctional Institution [“CCI”], claims that his constitutional rights
were violated by officials at CCI.

Defendant Robinson, the warden of

CCI, has filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)
for failure to state a claim upon which relief can be granted.
18.

Doc. No.

Defendant Robinson specifically argues, inter alia, that the

Complaint, as it relates to the claims asserted against him, seeks to
posit liability on a theory of respondeat superior.

Because such a

theory is an insufficient basis for liability under 42 U.S.C. § 1983, see
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-95 (1978); Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984), defendant Robinson contends
that the claims asserted against him must be dismissed.
In his response to defendant Robinson’s motion, Doc. No. 27,
plaintiff concedes that “Warden Robinson cannot be held liable as
Respondeat

Superior,”

id.

[sic],

and

asks

that

this

defendant

be

dismissed from the action.
It is RECOMMENDED that the motion to dismiss filed on behalf of

defendant Robinson, Doc. No. 18, be GRANTED.
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.
U.S.C. §636(b)(1); F.R. Civ. P. 72(b).

28

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).

November 14, 2012

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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