Durham v. Mohr et al

Filing 4

ORDER AND REPORT AND RECOMMENDATIONS re 3 Complaint filed by Roy A. Durham, Jr. Objections to R&R due by 7/7/2014. Signed by Magistrate Judge Norah McCann King on 6/17/2014. (pes1)

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

ROY A. DURHAM, JR.,
Plaintiff,
vs.

Civil Action 2:14-cv-581
Judge Marbley
Magistrate Judge King

GARY C. MOHR, et al.,
Defendants.

ORDER AND REPORT AND RECOMMENDATION

Plaintiff, currently incarcerated in the Southern Ohio
Correctional Facility, brings this action under 42 U.S.C. § 1983
alleging that defendants failed to place plaintiff in protective
custody at the Ross Correctional Institution (“RCI”) and thus
subjected plaintiff to harassment and assault by other inmates in
violation of plaintiff’s rights under the Eighth Amendment to the
United States Constitution.

The Complaint names as defendants forty

(40) officials of the Ohio Department of Rehabilitation and Correction
(“ODRC”) and various prison institutions. This matter is now before
the Court for the initial screen of the Complaint required by 28
U.S.C. §§ 1915(e), 1915A.
The Complaint alleges that plaintiff has been the victim of a
plot to publicize the nature of his criminal conviction and expose him
as a “snitch,” thus subjecting him to harassment and assaults. After
having been incarcerated in various Ohio prisons, plaintiff was

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transferred to RCI in February 2012. Id. at ¶ 58.

Harassment and

assaults to which plaintiff had been allegedly subjected at the other
institutions continued at RCI, plaintiff alleges, and defendants also
“manipulate[ed] records” so as to “avoid civil liability for injuries
caused to Plaintiff . . . .”

Id., at ¶ 59.

throughout April 2012 through June 19, 2012.

Incidents continued
Id. at ¶¶ 60 – 87. The

Complaint appears to have been executed by plaintiff on June 12, 2014.
Id. at PAGEID #41.
Plaintiff has asserted similar claims against some of the same
defendants in connection with incidents that are alleged to have
occurred at the Warren Correctional Institution (“WCI”).

Durham v.

Chief Bureau of Classification and Reception, et al., 1:13-cv-226
(S.D. Ohio). The claims asserted in this action against defendants
Michael Sheets (WCI warden), Justin Johnson (WCI unit staff member),
and Rosalie Battles, (WCI case manager) –who are also named defendants
in that litigation – should be pursued in 1:13-cv-226 rather than in
this litigation.
Plaintiff also names as a defendant Keith Smith, the warden at
the Toledo Correctional Institution.

Any claims that plaintiff may

have against this defendant arose more than two (2) years prior to the
execution of the Complaint and are therefore untimely.

See Browning

v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989)(en banc).
Also untimely are claims arising out of events that are alleged
to have occurred at RCI more than two years prior to the execution of
the Complaint on June 12, 2014.

See id.

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It is therefore RECOMMENDED that the claims against defendants
Michael Sheets, Justin Johnson and Rosalie Battles be DISMISSED
without prejudice to pursuit in 1:13-cv-226 rather than in this
litigation, that the claims against defendant Keith Smith be DISMISSED
as untimely and that claims arising out of events that are alleged to
have occurred more than two years prior to June 12, 2014 be DISMISSED
as untimely.
If plaintiff submits a copy of the Complaint, a summons and a
Marshal service form for each of the remaining defendants, the United
States Marshals Service will effect service of process.

Each

defendant may have forty-five (45) days after service of process to
respond to the Complaint. Plaintiff is ADVISED that the Court may
dismiss the claims against any defendant not served with process
within 120 days.

See Fed. R. Civ. P. 4(m).

If any party seeks review by the District Judge of this Report
and Recommendation, that party 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
thereof in question, as well as the basis for objection thereto.
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
thereof.

Fed. R. Civ. P. 72(b).

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 of the right to appeal the

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decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

DATE: June 17, 2014

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