Anderson v. Toledo Correctional Center Medical Dept. et al

Filing 4

REPORT AND RECOMMENDATIONS. It is RECOMMENDED that this action be dismissed for lack of subject jurisdiction and for failure to state a claim upon which relief can be granted. Objections to R&R due by 3/23/2015. Signed by Magistrate Judge Norah McCann King on 3/4/2015. (pes1) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

BENNIE ANDERSON,
Plaintiff,
vs.

Civil Action 2:15-cv-728
Judge Graham
Magistrate Judge King

TOLEDO CORRECTIONAL CENTER
MEDICAL DEPT., et al.,
Defendants.

REPORT AND RECOMMENDATION

Plaintiff, a state inmate, brings this civil rights action under
42 U.S.C. § 1983, alleging that he has been denied needed medical care
and discriminated against on account of his race. 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 suffered a broken hip in a
fall at the Toledo Correctional Center but that he has been denied
needed treatment, at the direction of officials at the Ohio Department
of Rehabilitation and Correction, because of budgetary constraints.
Plaintiff also alleges that he has been denied extra milk, as
prescribed for him by medical personnel, for the same reason. Finally,
plaintiff alleges that he has been denied new eyeglasses because of
budget constraints and because of his race.
The Complaint names as defendants only the Toledo Correctional
Center Medical Department and the Ohio Department of Rehabilitation

1

and Correction.1 These defendants are state agencies and, as such, are
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”).

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). Plaintiff’s claims cannot
proceed against these defendants.
It is therefore RECOMMENDED that this action be dismissed for
lack of subject jurisdiction and for failure to state a claim upon
which relief can be granted.

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).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

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

1

The caption of the Complaint also refers to “John and Jane doe’s [sic], State
officers and staff,” but does not identify any particular individual.

2

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 objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

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

March 4, 2015

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

3

to