Rogers v. The State of Ohio et al

Filing 4

REPORT AND RECOMMENDATIONS ON INITIAL SCREEN OF 3 Complaint filed by Alterik Rogers. Objections to R&R due by 6/1/2015. Signed by Magistrate Judge Norah McCann King on 5/13/2015. (pes)(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

ALTERIK ROGERS,
Plaintiff,
vs.

Civil Action 2:15-cv-1877
Judge Sargus
Magistrate Judge King

THE STATE OF OHIO, et al.,
Defendants.
REPORT AND RECOMMENDATION ON INITIAL SCREEN OF THE COMPLAINT
Plaintiff, a state prisoner proceeding without the assistance of
counsel,

brings

this

civil

rights

action

under

42

U.S.C.

§

1983

alleging that he suffered injury during the course of a motor vehicle
accident caused by defendant Steubenville Police Officer Sean Scott
and was thereafter denied medical care by personnel at the Jefferson
County Jail. This matter is now before the Court for the initial
screen of the Complaint required by 28 U.S.C. §§ 1915(e), 1915A.
The State of Ohio, a named defendant, 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”).

Moreover, a state

is not a “person” subject to suit under 42 U.S.C. §1983.
Michigan Dep’t of State Police, 491 U.S. 58, 70-71 (1989).

1

Will v.

It is therefore RECOMMENDED that the State of Ohio be dismissed
as a defendant in this action.
If plaintiff submits summonses for the remaining defendants, the
United States Marshals Service will effect service of process on the
defendants, who shall have forty-five (45) days after service of
process to respond to the Complaint.
Plaintiff is ADVISED that the claims against any defendant not
served with process within 120 days may be dismissed.

See Fed. R.

Civ. P. 4(m).

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).

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]

2

judge’s
ability

recommendations
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)).

May 13, 2015

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

3

to