White v. Kasich et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 3-26-13. (ga)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KNOWLEDGE WHITE,
Plaintiff,
Civil Action 2:12-cv-1125
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers

v.

JOHN KASICH, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court for consideration of the March 8, 2013 Report and
Recommendation of the Magistrate Judge. (ECF No. 11.) Upon an initial screen pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A, the Magistrate Judge recommended that the Court dismiss
various claims Plaintiff purports to assert in his Amended Complaint. Plaintiff filed a Motion for
Reconsideration of the Report and Recommendation, which the Court construes as an Objection,
on March 21, 2013. (ECF No. 13.) This matter is also before the Court for consideration of
Plaintiff’s Motion for Production of Documents. (ECF No. 13.) For the reasons that follow,
Plaintiff’s Objection to the Report and Recommendation of the Magistrate Judge is
OVERRULED. (ECF No. 13.) The Report and Recommendation is ADOPTED. (ECF No.
11.) Plaintiff’s purported § 1983 claims against Defendants Governor Kasich, the State of Ohio,
Gary Mohr, the Ohio Department of Rehabilitation and Corrections (“ODRC”), Rhonda
Richards, Inspector Wingard, Ms. Boykin, Ms. Kesken, J. Cathel, the State Highway Patrol, and
Shawn McLaughlin, are DISMISSED. Plaintiff’s Motion to Certify Class Action is DENIED.
(ECF No. 3.) Plaintiff’s Motion for Production of Documents is DENIED. (ECF No. 13.) At

this juncture, Plaintiff may proceed on his claims against Defendants Snowball, John Doe #1 and
John Doe #2 for cruel and unusual punishment, excessive force, and retaliation for exercising his
right to access the courts.
I.
Plaintiff, a pro se prisoner incarcerated at the Correctional Reception Center (“CRC”),
brings this action pursuant to 42 U.S.C. § 1983. (Am. Compl. 3, ECF No. 8.) In her Report and
Recommendation, the Magistrate Judge set forth the factual allegations contained in Plaintiff’s
Amended Complaint. (Report and Recommendation 2-5, ECF No. 11.) The Magistrate Judge
also correctly set forth the standard for initial screens pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A. Id. at 8-10. The Court adopts the factual background and the standard for initial screens
set forth in the Report and Recommendation.
A.

Review of the Report and Recommendation
If a party objects within the allotted time to a report and recommendation, the Court

“shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed
R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
In her Report and Recommendation, the Magistrate Judge specifically informed the
parties that “‘[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.’” (Report and Recommendation
21, ECF No. 11) (quoting Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007)). The Magistrate
Judge also informed the parties that “appellate review of issues not raised in those objections is

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waived.” Id. (citing Tesson, 507 F.3d at 994).
Here, Plaintiff raises only one particularized objection to the Report and
Recommendation of the Magistrate Judge, which must be overruled. Plaintiff objects to the
dismissal of his claims against the State of Ohio, Gary Mohr, ODRC and Warden Richards on
the ground that these Defendants “are in supervisory status to” Defendants Snowball, Doe #1
and Doe #2. (Obj. 2, ECF No. 13.) As the Magistrate Judge correctly recognized, an individual
cannot be sued based on his or her “supervisory status” because “‘§ 1983 liability cannot be
imposed under a theory of respondeat superior.’” (Report and Recommendation 12, ECF No.
11) (quoting Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008)). In other words, “a supervisor
is not liable under § 1983 for failing to train unless the supervisor either encouraged the specific
incident of misconduct or in some other way directly participated in it.” Everson v. Leis, 556
F.3d 484, 495 (6th Cir. 2009). Plaintiff provides no indication in his Amended Complaint that
any of these four Defendants encouraged the misconduct or otherwise participated in it. The
mere fact that they may have supervised other Defendants cannot subject them to § 1983
liability. Everson, 556 F.3d at 495. Accordingly, Plaintiff’s Objection to the Report and
Recommendation of the Magistrate Judge is OVERRULED.
B.

Plaintiff’s Motion for Production of Documents
Plaintiff also moves the Court for an order compelling Defendants to produce discovery

documents to assist him in identifying Defendants Doe #1 and Doe #2. (ECF No. 13.) At this
juncture, Plaintiff’s Motion is DENIED. (ECF No. 13.) First, Plaintiff’s discovery request is
premature. Plaintiff will have the opportunity to engage in discovery after Defendants are served
with and answer the Amended Complaint and after the Court enters a Scheduling Order.

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Second, the form of Plaintiff’s attempt to obtain discovery is improper. Pursuant to Rule 34 of
the Federal Rules of Civil Procedure, once the discovery period opens Plaintiff may seek
documents from Defendants by “serv[ing] on [Defendants] a request . . . to produce” documents.
Fed. R. Civ. P. 34. In other words, Plaintiff need not file a Motion to obtain documents from
Defendants. Rather, once the discovery period opens, Plaintiff must simply serve by mail a
request for production of documents on Defendants that conforms with the Federal Rules of
Civil Procedure and Local Rules of this Court.
II.
Accordingly, Plaintiff’s Objection to the Report and Recommendation of the Magistrate
Judge is OVERRULED. (ECF No. 13.) The Report and Recommendation is ADOPTED.
(ECF No. 11.) Plaintiff’s purported § 1983 claims against Defendants Governor Kasich, the
State of Ohio, Gary Mohr, the Ohio Department of Rehabilitation and Corrections (“ODRC”),
Rhonda Richards, Inspector Wingard, Ms. Boykin, Ms. Kesken, J. Cathel, the State Highway
Patrol, and Shawn McLaughlin, are DISMISSED. Plaintiff’s Motion to Certify Class Action is
DENIED. (ECF No. 3.) Plaintiff’s Motion for Production of Documents is DENIED. (ECF
No. 13.) At this juncture, Plaintiff may proceed on his claims against Defendants Snowball, John
Doe #1 and John Doe #2 for cruel and unusual punishment, excessive force, and retaliation for
exercising his right to access the courts.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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