Payne et al v. Pummill et al

Filing 16

REPORT AND RECOMMENDATIONS re 14 MOTION for Default Judgment against all defendants filed by Lowell N. Payne and MOTION for Summary Judgment filed by Lowell N. Payne. The Magistrate Judge RECOMMENDS that motions be DENIED. Objections to R&R due by 2/3/2014. Signed by Magistrate Judge Mark R. Abel on 1/16/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Lowell N. Payne,

:
Plaintiff

:
:

Cathy Pummill, et al.,
Defendants

Judge Smith

:

v.

Civil Action 2:13-cv-01172

Magistrate Judge Abel

:

Report and Recommendation
This matter is before the Magistrate Judge on plaintiff’s December 20, 2013
motion for default judgment and for summary judgment (doc. 14).
Plaintiff argues that there is no genuine dispute as to any material fact and that
he is entitled to judgment as a matter of law. Plaintiff maintains that defendants
Robinson, Cunningham, Hamilton, Pummill and Park acted personally without state
authority. Plaintiff also argues that defendants have failed to plead or otherwise defend
this action and seek an order entering default judgment.
As required by 28 U.S.C. §1915A(a) and (b) and 42 U.S.C. §1997e(c), the
Magistrate Judge issued an Initial Screening Report and Recommendation, which stated
that defendants were not required to answer the complaint unless later ordered to do so
by the Court. Defendants have not been ordered to file an answer or other responsive
pleading thus far. As a result, defendants are not in default.
1

For the reasons stated above, the Magistrate Judge RECOMMENDS that
plaintiff’s December 20, 2013 motion for default judgment and for summary judgment
(doc. 14) be DENIED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
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 waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);
United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not
raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/Mark R. Abel
United States Magistrate Judge

2