Austin v. Pickaway Correctional Institution et al

Filing 5

ORDER and REPORT AND RECOMMENDATIONS - It is ORDERED that plaintiff's claims under the Eighth and Fourteenth Amendments for denial of medical care by the individual defendants may at this juncture proceed. It is RECOMMENDED that all claims agai nst defendant Pickaway Correctional Institution, claims for money damages against the individual defendants in their official capacity and state law claims for medical malpractice be dismissed. Objections to R&R due by 7/21/2014. Signed by Magistrate Judge Norah McCann King on 7/3/14. (jr1)

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

ROBERT AUSTIN,
Plaintiff,
Case No. 2:14-cv-726
Judge Frost
Magistrate Judge King

v.

PICKAWAY CORRECTIONAL
INSTITUTION, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
Plaintiff, a state prisoner, brings this civil action against the
Pickaway Correctional Institution (“PCI”), the Director of the Ohio
Department of Rehabilitation and Correction and a number of other
state officials and employees, alleging that he has been denied
medical care.

Plaintiff asserts claims under 42 U.S.C. § 1983 and

state law claims of medical malpractice.

Complaint, ECF 1.

This

matter is before the Court for the initial screen of the Complaint
required by 28 U.S.C. § 1915A.
Defendant PCI, a state agency, is absolutely immune from suit in
this Court by virtue of the Eleventh Amendment to the United States
Constitution.

See Beil v. Lake Erie Correction Records Dept., 282

Fed. Appx. 363, 2008 WL 2434738 (6th Cir. June 13, 2008). See also
Regents of Univ. of Calif. v. Doe, 519 U.S. 425, 429 (1997)(Eleventh
Amendment sovereign immunity applies not only to the states themselves
but also to “state agents and instrumentalities”).

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Moreover, a state

agency is not a “person” subject to suit under 42 U.S.C. §1983.

Will

v. Michigan Dep’t of State Police, 491 U.S. 58, 70-71 (1989).
The Complaint does not specify in what capacity the individual
defendants are named. However, claims for damages asserted against
state employees in their official capacities cannot proceed in a
federal court because such claims are deemed to be claims against the
State.

Will, 491 U.S. at 71 (“[N]either a State nor its officials

acting in their official capacities are ‘persons’ under § 1983”).
Finally, plaintiff’s supplemental state law claims of medical
malpractice cannot proceed in this Court unless and until the Ohio
Court of Claims has determined that the state officials and employees
are not entitled to civil immunity under O.R.C. § 9.86.

See O.R.C. §

2743.02(F); Haynes v. Marshall, 887 F.2d 700, 704 (6th Cir.
1989)(state employees enjoy immunity from suit in a claim under Ohio
law); Johns v. University of Cincinnati Med. Assocs., 804 N.E.2d 19,
24 (Ohio 2004).
It is therefore ORDERED that plaintiff’s claims under the Eighth
and Fourteenth Amendments for denial of medical care by the individual
defendants may at this juncture proceed.
It is RECOMMENDED that all claims against defendant Pickaway
Correctional Institution, claims for money damages against the
individual defendants in their official capacity and state law claims
for medical malpractice be dismissed.
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,

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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).

28

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 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

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

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

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

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 objections to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

s/ Norah McCann King___
Norah McCann King
United States Magistrate Judge
July 3, 2014

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to