Pullen v. Howard et al

Filing 64

REPORT AND RECOMMENDATIONS: It is RECOMMENDED that the 44 Motion for Leave to File Supplemental Complaint be DENIED - objections due w/in fourteen (14) days. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/17/2015. (sr)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

TERRY TYRONE PULLEN, JR.,
Plaintiff,
Civil Action 2:14-cv-104
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers

v.

C/O LISA HOWARD, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiff, Terry Tyrone Pullen, Jr., an Ohio inmate who is proceeding without the
assistance of counsel, brings this civil rights action under 42 U.S.C. § 1983 against Defendants,
employees and former employees of the Ohio Department of Rehabilitation and Correction
(“ODRC”), alleging that he was subjected to excessive force in violation of the Eighth
Amendment. The matter is before the Undersigned for a Report and Recommendation on
Plaintiff’s Motion for Leave to File Supplemental Complaint. (ECF No. 44.) For the reasons
that follow, it is RECOMMENDED that his Motion for Leave to File Supplemental Complaint
be DENIED.
According to Plaintiff’s Motion, he has discovered that ODRC employees destroyed
video footage of the alleged incident that is the subject of this action. He therefore seeks leave to
amend his Complaint to add a new claim based upon the purported video destruction.
Under Federal Rule of Civil Procedure 15(a)(2), the Court should give leave for a party to
amend its pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). Accordingly, when a

party decides “to advance a new claim as a result of [] discovery” Rule 15(a) provides for
“liberal amendment to the complaint.” Tucker v. Union of Needletrades, Indust. & Textile Emps,
407 F.3d 784, 788 (6th Cir. 2005). “Nevertheless, leave to amend ‘should be denied if the
amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to
the opposing party, or would be futile.’” Carson v. U.S. Office of Special Counsel, 633 F.3d 487,
495 (6th Cir. 2011) (quoting Crawford v. Roane, 53 F.3d 750, 753 (6th Cir.1995)) (emphasis
added). A court may deny a motion for leave to amend for futility if the amendment could not
withstand a motion to dismiss. Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505,
512 (6th Cir. 2010); Midkiff v. Adams Cnty. Reg’l Water Dist., 409 F.3d 758, 767 (6th Cir. 2005).
The Undersigned concludes that Plaintiff’s proposed amendment is futile. Federal
common law does not recognize a free-standing tort claim for spoliation. Cummerlander v.
Patriot Preparatory Academy, No. 2:13-cv-329, 2013 WL 5969727, at *2 (S.D. Ohio Nov. 8,
2013) (citations omitted). Moreover, any state-law spoliation claim would not survive a Federal
Rule of Civil Procedure 12(b)(1) motion to dismiss because this Court lacks subject matter
jurisdiction to hear the claim. The Eleventh Amendment of the United States Constitution
operates as a bar to federal-court jurisdiction when a private citizen sues a state or its
instrumentalities unless the state has given express consent. Pennhurst St. Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1983); Thomas v. Noder-Love, No. 13-2495, --- F. App’x ----,
2015 WL 4385284, at *5 (6th Cir. July 17, 2015) (“Eleventh Amendment immunity also bars
any pendent state-law claims brought against state officials in their official capacity.”). Pursuant
to Ohio Revised Code § 2743.03(A)(1), claimants who seek relief against the state must first file
an action in the Ohio Court of Claims. Ohio’s waiver of immunity in the Court of Claims does
not constitute a waiver of its Eleventh Amendment immunity from suit in federal court. Johns v.

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Supreme Court of Ohio, 753 F.2d 524, 527 (6th Cir. 1985) (citing Edelman v. Jordan, 415 U.S.
651, 677 n.19 (1974)). Moreover, “[i]t is well established that § 1983 does not abrogate the
Eleventh Amendment.” Harrison v. Michigan, No. 10-2185, 2013 WL 3455488, at *3 (6th Cir.
July 10, 2013) (citing Quern v. Jordan, 440 U.S. 332, 341 (1979)). Applied here, the Ohio Court
of Claims has exclusive, original jurisdiction over Plaintiff’s proposed state-law spoliation claim
against the ODRC employees in their official capacities.
Although Plaintiff cannot assert a federal common law or state-law spoliation claim
against the ODRC individuals in their official capacities, he is not without recourse. For
example, Plaintiff could seek evidentiary sanctions for spoliation. See, e.g., Beaven v. U.S. Dep’t
of Justice, 622 F.3d 540, 554 (6th Cir. 2010) (finding that the district court “did not abuse its
broad discretion in finding that an adverse inference was appropriate as a spoliation sanction”);
Adkins v. Wolever, 554 F.3d 650 (6th Cir. 2009) (“[I]t is within a district court’s inherent power
to exercise broad discretion in imposing sanctions based on spoliated evidence.”). At this
juncture, however, the Undersigned expresses no opinion on the merits of any request for
evidentiary sanctions.
In sum, it is RECOMMENDED that Motion for Leave to File Supplemental Complaint
be DENIED. (ECF No. 44.)
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, they
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 in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the 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. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge's report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994
(6th Cir. 2007) (“[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 . . . .”) (citation omitted)).

Date: December 17, 2015

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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