Payne et al v. Pummill et al

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 1/23/14. (lvw1)

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

LOWELL N. PAYNE, JR.,
Plaintiff,
vs.

Case No.: 2:13-cv-1172
JUDGE SMITH
Magistrate Judge Abel

CATHY PUMMILL, et al.,
Defendants.

ORDER
On November 22, 2013, the United States Magistrate Judge issued a Report and
Recommendation recommending that Plaintiffs’ Complaint be dismissed for failure to state a
claim under 42 U.S.C. § 1983. It was further recommended that Plaintiff Payne’s Motion for
Certification of a Class Action be DENIED because pro se prisoners are not qualified to
adequately represent a class. (See Report and Recommendation, Doc. 5). The parties were
advised of their right to object to the Report and Recommendation. This matter is now before the
Court on Plaintiff Payne’s Objections to the Report and Recommendation. (See Doc. 8). The
Court will consider the matter de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
The objections present the same issues presented to and considered by the Magistrate
Judge in the Report and Recommendation. Plaintiff objects to the Magistrate Judge’s
characterization of him and his fellow inmates as prisoners. He asserts they are “detainee’s
being held unlawfully at the Chillicothe Correctional Institution.” (Doc. 8 at 1). However, as the
Magistrate Judge thoroughly discussed in the Report and Recommendation, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’ Twombly, 550 U.S. at 570.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plaintiff,
whether identified as a prison or detainee has failed to sufficiently state a claim for relief. For
the reasons stated in the Report and Recommendation, this Court finds that Plaintiff’s objections
are without merit and are hereby OVERRULED.
The Report and Recommendation, Document 5, is ADOPTED and AFFIRMED.
Plaintiffs’ Complaint is hereby dismissed in its entirety. Further, Plaintiff’s other pending
motions for certification, default judgment, summary judgment and reconsideration are DENIED
AS MOOT.
The Clerk shall remove Documents2, 3, 5, 14 AND 15 from the Court’s pending motions
list. The Clerk shall terminate this case.

IT IS SO ORDERED.
/s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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