Brown v. Mohr et al

Filing 123

OPINION AND ORDER denying 96 Motion. Signed by Senior Judge Peter C. Economus on 5/13/2015. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEVEN S. BROWN,

Case No. 2:13-cv-006

Plaintiff,

Judge Peter C. Economus

v.
DIRECTOR MOHR, et al.,

Magistrate Judge Kemp

Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court for consideration of Magistrate Judge Terrence P. Kemp’s
Report & Recommendation (“R & R”) (ECF No. 92) and Plaintiff Steven Brown’s (“Mr.
Brown”) Objections thereto (ECF No. 96). For the reasons that follow, the Court OVERULES
Mr. Brown’s Objection (ECF No. 96) and ADOPTS the R & R of the Magistrate Judge (ECF
No. 92).
I.

Background
Mr. Brown, a prison inmate, brings this pro se civil rights action against numerous

Defendants. This case came before the Court by way of a transfer from the United States District
Court for Southern District of Ohio, Western Division. In the Western Division, Magistrate
Judge J. Gregory Wehrman issued a R & R dismissing some of Mr. Brown’s original claims, and
transferring other claims to the United States District Court for Southern District of Ohio,
Eastern Division. (ECF No. 12.) Claims related to Mr. Brown’s incarceration at the Ross
Correction Institute were transferred to this Court. The surviving claims arising out of events
while Mr. Brown was incarcerated at the Southern Ohio Correctional Facility remain pending in
the Western Division as Case No. 1:12-cv-583.

Following the transfer, this Court granted Mr. Brown leave to file a Second Amended
Complaint. (ECF No. 51.) Defendants filed a motion to strike Mr. Brown’s second amended
complaint. (ECF No. 52.) Mr. Brown then filed a motion to appoint Counsel. (ECF No. 75.)
On November 6, 2014, Magistrate Judge Kemp issued an R & R that ruled on a number
of pending motions. (ECF No. 92.) Specifically, Magistrate Judge Kemp granted Defendants’
motion to strike the second amended complaint, and denied Mr. Brown’s motion to appoint
counsel. Mr. Brown filed an Objection to the R & R. (ECF No. 96.)
II.

Standard of Review
A district court must review de novo those portions of a magistrate judge’s report to

which a specific objection has been made, and may accept, reject, or modify any of the
magistrate judge’s findings or recommendations. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b). “However, the district court need not provide de novo review where the objections are . . .
general. The parties have the duty to pinpoint those portions of the magistrate’s report that the
district court must specially consider.” Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986)
(internal quotation marks and citations omitted). “The objections must be clear enough to enable
the district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50
F.3d 373, 380 (6th Cir. 1995). “‘[O]bjections disput[ing] the correctness of the magistrate’s
recommendation but fail[ing] to specify the findings . . . believed [to be] in error’ are too
general.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006) (quoting Miller, 50 F.3d at
380).
III.

Analysis
Mr. Brown objects to the Magistrate Judge’s recommendation to strike the second

amended complaint, and to deny his motion to appoint counsel. On April 11, 2014, with leave of

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Court, Mr. Brown filed a second amended complaint in this case. In granting Mr. Brown leave to
file an amended complaint, this Court specifically directed that his amended complaint conform
to the representations in his motion for leave. Mr. Brown’s motion for leave raised issues relating
to conditions at Ross Correctional Institution only. The second amended complaint is 42 pages
long, names 59 defendants, many of whom are employees at the Southern Ohio Correctional
Facility, and contains claims relating to the conditions of his confinement at the Southern Ohio
Correctional Facility. Mr. Brown’s amended complaint naming defendants and raising issues
relating to the Southern Ohio Correctional Facility is inconsistent with the Court’s instruction.
In his objection, Mr. Brown points to no specific finding of the Magistrate Judge that this
Court must consider. Mr. Brown simply restates the arguments that he made previously to
Magistrate Judge Kemp. Primarily, Mr. Brown continues to argue that this case should be
consolidated with his case in the Western Division. Therefore, the Court finds that Mr. Brown’s
objections regarding the stricken complaint are too general. Objections that are too general do
not warrant de novo review.
The Court now turns Magistrate Judge Kemp’s recommendation to deny Mr. Brown’s
motion to appoint counsel. Magistrate Judge Kemp noted the following:
Mr. Brown asked that counsel be appointed for him by a motion filed September
23, 2014. Since this action has not yet progressed to the point that the Court is
able to evaluate the merits of plaintiff's claim, the motion for appointment of
counsel is denied. Mars v. Hanberry, 752 F.2d 254 (6th Cir. l985).
(ECF No. 92 at 6.). This Court agrees with Magistrate Judge Kemp. Because this Court
grants Defendants motion to strike the second amended complaint, Mr. Brown must file a
third amended complaint. The Court cannot evaluate the merits of the claim until Mr.
Brown files a third amended complaint. Therefore, the Court overrules Mr. Brown’s
objection.
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IV.

Conclusion
For the reasons discussed above, the Court hereby OVERULES Mr. Brown’s Objection

(ECF No. 96) and ADOPTS the R & R of the Magistrate Judge (ECF No. 92). The Court hereby
ORDERS Mr. Brown to timely file a third amended complaint in accordance with Magistrate
Judge Kemp’s R & R.

IT IS SO ORDERED.

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