Stokes v. Ells et al

Filing 18

ORDER AND REPORT AND RECOMMENDATION re 10 MOTION to Dismiss. The Magistrate Judge RECOMMENDS that Defendants Ells and Loudermilk be DISMISSED from this action. Plaintiff's 16 Motion for Leave to Amend is GRANTED IN PART and DENIED IN PAR T. Plaintiff must file his Amended Complaint within THIRTY (30) DAYS of the date of this Order. Objections to R&R due by 5/26/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 5/8/2015. (mas)(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
RONALD C. STOKES,
Plaintiff,
Civil Action 2:14-cv-1601
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers

v.

STEVE ELLS, et al.,
Defendants.
ORDER and REPORT and RECOMMENDATION
This matter is before the Court for consideration of Plaintiff’s Motion for Leave to
Amend his Complaint to add his employer, Chipotle, as a defendant. (ECF No. 16.) Defendants
do not oppose Plaintiff’s Motion for Leave to Amend his Complaint, but they request that the
Court require Plaintiff to do so within thirty (30) days. Defendants’ request is well-taken.
Accordingly, Plaintiff’s Motion for Leave to Amend is GRANTED IN PART and DENIED IN
PART. (ECF No. 16.) Plaintiff must file his Amended Complaint within THIRTY (30) DAYS
of the date of this Order.
This matter is also before the Court for a supplemental Report and Recommendation on
Defendant’s Motion to Dismiss. (ECF No. 10.) For the reasons stated in the January 20, 2015
Report and Recommendation, the Undersigned RECOMMENDS that Defendants Ells and
Loudermilk be DISMISSED from this action in their individual capacities. (ECF No. 11.)
Further, because the Court will allow Plaintiff to amend his Complaint to name Chipotle as
Defendant, any claims against Ells and Loudermilk in their official capacities will be duplicative
and should be dismissed. See Bennett v. White Tiger, Inc., No. 2:12-CV-171, 2013 WL 164507,
at *4 (S.D. Ohio Jan. 15, 2013) (“this Court has dismissed official capacity claims as

unnecessarily duplicative, and “add[ing] nothing to th[e] litigation,” when the employer entity is
already included as a defendant.”) (internal citations omitted). For the above stated reasons, the
Undersigned RECOMMENDS that Defendants Ells and Loudermilk be DISMISSED from this
action.
PROCEDURE ON OBJECTIONS
If Plaintiff seeks review by the District Judge of this Report and Recommendation, he
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).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
Plaintiff is 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
2

omitted)).
IT IS SO ORDERED.

Date: May 8, 2015

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

3