Whitmore v. Mallory et al

Filing 23

ORDER denying 17 Motion ; adopting Report and Recommendations re 19 Report and Recommendations.. Signed by Judge James L. Graham on 5/3/2017. (ds)(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
Ricky Whitmore,
Plaintiff,
v.

Case No. 2:15-cv-2838

Elmeaco Mallory, et al.,
Defendants.
ORDER
This matter is before the court for consideration of the April
18, 2017, report and recommendation issued by the magistrate judge,
recommending that plaintiff’s motion to reinstate his claims be
denied.
Cheryl

In his motion, plaintiff requests that his claims against
Mabry-Thomas,

the

Director

of

Opportunity Commission, be reinstated.
because

the

Sixth

Circuit

Court

of

the

Equal

Employment

Plaintiff argues that
Appeals

included

this

defendant’s name in the caption of its decision which dismissed his
appeal as untimely, that court must have concluded that he had
advanced a valid claim against her. The magistrate judge construed
the motion as one for relief from judgment pursuant to Fed. R. Civ.
P. 60(b), and concluded that plaintiff failed to present grounds
for relief under Rule 60(b).

On May 2, 2017, plaintiff filed his

objections to the report and recommendation.
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. §636(b)(1);
see also Fed. R. Civ. P. 72(b).

Upon review, the Court “may

accept, reject, or modify, in whole or in part, the findings or

recommendations

made

by

the

magistrate

judge.”

28

U.S.C.

§636(b)(1).
The court agrees with the conclusion of the magistrate judge
that plaintiff has shown no grounds for relief under Rule 60(b).
The inclusion in the caption of the Sixth Circuit decision of the
names of all defendants plaintiff listed in his complaint was
simply a recounting of the parties plaintiff named in this action.
The Sixth Circuit dismissed plaintiff’s appeal as untimely, and did
not

address

the

merits

of

plaintiff’s

claims

in

any

way.

Plaintiff’s objections do not demonstrate that the magistrate
judge’s

recommendation

to

deny

relief

under

Rule

60(b)

was

erroneous.
The report and recommendation of the magistrate judge (Doc.
19)

is

hereby

adopted

and

affirmed.

Plaintiff’s

motion

reinstate (Doc. 17) is denied.

Date: May 3, 2017

s/James L. Graham
James L. Graham
United States District Judge

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