Watkins v. Conn et al

Filing 16

OPINION and ORDER adopting 14 the Report and Recommendation. Signed by Judge Michael H. Watson on 6/8/15. (jk)(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
Kenneth L. Watkins,
Plaintiff,

v.
Sue Rena Conn, eta/.,

Case No. 2:14-cv-1365
Judge Michael H. Watson

Defendants.
OPINION AND ORDER
Kenneth L. Watkins ("Plaintiff') initiated this civil rights case on August 26,

2014 against Sue Rena Conn ("Conn"), Deborah Lockridge Hunt ("Hunt"), Frank
Payne ("Payne") and Raymond Pugh ("Pugh"). Thereafter, he moved to amend
the complaint to remove Hunt, Payne, and Pugh as defendants, stating he
wished for them to be witnesses only. Mot. 1, ECF No. 5. The case caption of
that motion listed Conn as a defendant but also, for the first time, listed the
United States Postal Service ("USPS") as a defendant. /d.
Magistrate Judge Abel granted Plaintiff's motion to amend, Order 1, ECF
No. 8. After Plaintiff failed to file proof of service of the summons and complaint
on the USPS, Magistrate Judge Abel ordered Plaintiff to show cause as to why
the USPS should not be dismissed for failure to serve. Order 2, ECF No. 11.
Plaintiff's response to the Order to show cause addressed only the merits of his

case against Conn and did not explain his failure to timely serve the USPS
except to say that he "didn't realize [he] missed the 120 days [he] was given to

produce any evidence that [he had] to the courts," which, in any event, reflects a
misunderstanding of Magistrate Judge Abel's show cause Order. ECF No. 12.
Upon Magistrate Judge Abel's retirement, the case was reassigned to
Magistrate Judge Kemp, who issued a Report and Recommendation ("R&R").
The R&R concluded that a liberal reading of Plaintiff's motion to amend and
response to Magistrate Judge Abel's show cause Order indicated that Plaintiff did
not intend to name the USPS as a defendant. R&R 2, ECF No. 14. Because
Magistrate Judge Kemp concluded Plaintiff intended to pursue claims against
only Conn, he recommended dismissing any claims purportedly brought against
\

Hunt, Payne, Pugh, or the USPS. /d.
With respect to Plaintiff's claims against Conn, Magistrate Judge Kemp
noted that Plaintiff alleged Conn was an employee of the USPS. /d. He further
noted that the Federal Rules of Civil Procedure set forth specific provisions for
service on an employee of the United States, and there is no evidence Plaintiff
served Conn in accordance with those provisions. /d. at 2-3. In accordance with
Rule 4(m), Magistrate Judge Kemp ordered Plaintiff to show good cause as to
why the action should not be dismissed against Conn and why an extension of
time to perfect service should be allowed. /d. at 3.
Judge Kemp notified the parties of their right to file objections to the R&R
pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).
The R&R further specifically advised the parties that the failure to object to the
R&R within fourteen days would result in a waiver of the right to de novo review
Case No. 2:14-cv-1365

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by the District Judge as well as a waiver of the right to appeal the decision of the
District Court adopting the R&R. /d. at 4.
Plaintiff timely "objected," ECF No. 15. His "objection," however, did not
address Judge Kemp's recommendation that this case be dismissed for failure to
serve and rather continued to argue the merits of his case against Conn.
Consistent with Rule 72(b ), the Undersigned must determine de novo only
those portions of an R&R which have been properly objected to. Fed. R. Civ. P.
72(b )(3). Because Plaintiff did not properly object to Magistrate Judge Kemp's
R&R, the Undersigned declines to conduct a de novo review, ADOPTS the R&R,
ECF No. 14, and DISMISSES the case without prejudice. The Clerk shall
terminate the case.
IT IS SO ORDERED.

~~TSON,JUDGE
UNITED STATES DISTRICT COURT

Case No. 2:14-cv-1365

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