Whitmore v. Mallory et al

Filing 19

REPORT AND RECOMMENDATIONS re 17 MOTION to Reinstate Claim: It is RECOMMENDED that Plaintiff's Motion be DENIED. Objections to R&R due by 5/2/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/18/2017. (kdp)(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
RICKY WHITMORE,
Plaintiff,
Civil Action 2:15-cv-2838
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers

v.

ELMEACO MALLORY, et al.,
Defendant.
REPORT AND RECOMMENDATION
This matter is before the Undersigned upon the Court’s December 12, 2012 Order (ECF
No. 18) referring Plaintiff’s Motion to Reinstate Claim (ECF Nos. 17) to the Undersigned for a
Report and Recommendation. For the reasons that follow, it is RECOMMENDED that
Plaintiff’s Motion be DENIED.
In his Motion, Plaintiff asks the Court reinstate his claims against Defendant Cheryl
Mabry-Thomas, the Director of the Equal Employment Opportunity Commission (“EEOC”). As
best as the Undersigned can discern, in support of this Motion, Plaintiff relies upon the case
caption the United States Court of Appeals for the Sixth Circuit utilized in its February 22, 2016
Order dismissing Plaintiff’s appeal (ECF No. 13) to argue that he advanced viable claims against
Ms. Mabry-Thomas. Plaintiff appears to argue that the Sixth Circuit’s identification of Elmeaco
Mallory, an investigator for the EEOC, as an appellee in the case caption reflects the Sixth
Circuit’s agreement with him that he properly sued the EEOC.
The Undersigned construes Plaintiff’s Motion to Reinstate Claim as a motion for relief
from judgment pursuant to Federal of Civil Procedure 60(b)(1). Rule 60(b) permits a court to

reopen final judgments for a number of reasons, including “mistake, inadvertence, surprise, . . .
excusable neglect, newly discovered evidence, . . . fraud . . . or any other reason that justified
relief.” Fed. R. Civ. P. 60(b). “In determining whether relief is appropriate under Rule 60(b)(1),
courts consider three factors: (1) culpability—that is, whether the neglect was excusable; (2) any
prejudice to the opposing party; and (3) whether the party holds a meritorious underlying claim
or defense.” Yeschick v. Mineta, 675 F.3d 622, 628–29 (6th Cir. 2012) (internal quotation marks
and citations omitted).
Applying the foregoing, the Undersigned concludes that Plaintiff has not demonstrated
that he is entitled to relief under Rule 60(b). Contrary to Plaintiff’s assertions, the case caption
the Sixth Circuit employed is a reflection of the parties he named in this action and on appeal
rather than the Court’s opinion that he has advanced meritorious claims against individuals
employed by the EEOC. Indeed, review of the Sixth Circuit’s Order reveals that it did not even
reach the merits of Plaintiff’s appeal and instead dismissed it as untimely. (ECF No. 13.)
Accordingly, it is RECOMMENDED that Plaintiff’s Motion to Reinstate be DENIED. (ECF
No. 17.)
PROCEDURE ON OBJECTIONS
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 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).
The parties are specifically advised that the failure to object to the Report and
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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
omitted)).
IT IS SO ORDERED.

Date: April 18, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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