Cleare v. Jenkins et al

Filing 39

ORDER adopting Report and Recommendations re 32 Report and Recommendations.; granting in part and denying in part 19 Motion to Dismiss for Failure to State a Claim. Signed by Judge Algenon L. Marbley on 8/25/2016. (cw)(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
RODERICK CLEARE,

:
:
Plaintiff,
:
:
v.
:
:
WARDEN CHAROLETTE JENKINS, et al., :
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Defendants.
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Case No. 15-CV-2295
JUDGE ALGENON L. MARBLEY
Magistrate Judge Jolson

ORDER
Before the Court is Defendants' October 26, 2015 Motion to Dismiss for Failure to State
a Claim in the above-styled matter (Doc. 19), and the Magistrate Judge's June 24, 2016 Report
and Recommendation that the aforementioned motion be granted in part and denied in part.
(Doc. 32).
The Report and Recommendation specifically advised parties that any objections thereto
must be filed within 14 days after issuance of the Report and Recommendation, and “that [a]
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 to the District Court."
(Id. at 17.)
The Court hereby ADOPTS the Report and Recommendation based on the independent
consideration of the analysis therein. Accordingly, the Court DENIES Plaintiff's motion to
convert Defendant's Motion to Dismiss into a motion for summary judgment, the Court
GRANTS Defendants' Motion to Dismiss with respect to Plaintiff's: Count I Excessive Force
against Defendants Irvin and Free; Count II(b) Retaliation against all Defendants; and Count III
Conspiracy against all Defendants.
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The Court sua sponte GRANTS Plaintiff leave to file a Second Amended Complaint
consistent with the foregoing within TWENTY-ONE (21) DAYS from issuance of this Order.
Specifically, Plaintiff may file the Second Amended Complaint as to: Count I against Defendants
Higgenbothem, Lieutenant Brown, and Captain Brown; and Count II(a) against Defendants
Higgenbothem, Irvin, and Lieutenant Brown. If Plaintiff does not file a Second Amended
Complaint within 21 days, all of the aforementioned claims will be dismissed with prejudice as
to those Defendants.
Plaintiff is allowed to proceed with his Count II(a) Retaliation claim against Defendant
Free.
IT IS SO ORDERED.

s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT COURT
Dated: August 25, 2016

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