Thorp v. Ohio Department of Rehabilitation and Correction et al

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C. Smith on 5/27/15. (lvw)(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

KENNETH G. THORP,
Plaintiff,
vs.

Case No.: 2:15-cv-1121
JUDGE SMITH
Magistrate Judge King

OHIO DEPARTMENT OF REHABILITATION
AND CORRECTION, et al.,
Defendants.

ORDER
On April 17, 2015, the United States Magistrate Judge issued a Report and
Recommendation recommending that this case proceed against Defendants Michelle Miller, the
Warden of the Belmont Correctional Institution, and Major Clark, but that it be dismissed as to
the other named Defendants (ODRC, Mohr, Bumgardner, and Riehle) for lack of subject matter
jurisdiction and/or failure to state a claim upon which relief can be granted. (See Report and
Recommendation, Doc. 7). The parties were advised of their right to object to the Report and
Recommendation. This matter is now before the Court on Plaintiff Thorp’s Objections to the
Report and Recommendation. (See Doc. 10). The Court will consider the matter de novo. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Plaintiff stipulates to the dismissal of Defendants Kelly Riehle, Gary Mohr, and ODRC, a
state entity. However, Plaintiff objects to the dismissal of Defendant Bumgardner. First,
Plaintiff asserts that the Magistrate Judge incorrectly referred to Defendant Bumgardner as
“Institutional Inspector,” when in fact his job and function is “Institutional Investigator.”

Plaintiff argues that this “makes a vast difference with respect to not only liability, immunity
issue, but job authority/position and his responsibilities.” (Pl.’s Obj. at 1). The Court has
carefully considered Plaintiff’s argument and finds that regardless of the title used by the
Magistrate Judge in her Report and Recommendation, she correctly held that merely because a
defendant is “charged with handling inmates’ grievances is not sufficient to allege that they had
either the authority or the ability to change or correct the prison conditions about which plaintiff
complains.” (Report and Recommendation at 4-5). Therefore, the Magistrate has already
considered the arguments raised by Plaintiff in his objections. For the reasons stated in the
Report and Recommendation, this Court finds that Plaintiff’s objections are without merit and
are hereby OVERRULED.
The Report and Recommendation, Document 7, is ADOPTED and AFFIRMED.
Plaintiff’s Complaint is hereby dismissed as to Defendants ODRC, Mohr, Bumgardner, and
Riehle.
The Clerk shall remove Documents 7 and 10 from the Court’s pending motions list.
IT IS SO ORDERED.
/s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

2