Whitmore v. Mallory et al

Filing 8

ORDER - adopting 5 Report and Recommendations, Terminate Motions,,,, vacates 6 Order Adopting Report and Recommendations, and denies 7 Objection to Report and Recommendations filed by Ricky Whitmore. Signed by Judge Gregory L. Frost on 15-2838. (kn)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)Copy of Order sent to Ricky Whitmore, 2385 Indiana Avenue, Columbus, Ohio 43202.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICKY WHITMORE,
Plaintiff,
Case No. 2:15-cv-2838
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers

v.
ELMEACO MALLORY, et al.,
Defendants.

ORDER
Previously, this Court filed an Order in which the Court, noting that no objections had
been filed, adopted the Magistrate Judge’s Order and Initial Screen Report and Recommendation
and dismissed this action pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). (ECF No. 6.) The Court
instructed the Clerk to enter judgment accordingly and terminate the case on the docket.
Subsequent to the filing of that Order, the Clerk’s Office received an objection from
Plaintiff that is dated November 3, 2015, and was received by the Clerk on November 10, 2015.
Accepting the objection as timely filed, the Court VACATES the Order adopting the Magistrate
Judge’s Order and Initial Screen Report and Recommendation and dismissing this case. (ECF
No. 6.) The objection does not, however, persuade the Court to reject the Magistrate Judge’s
Order and Initial Screen Report and Recommendation.
The Magistrate Judge’s thorough and well-reasoned opinion explains at length that
Plaintiff’s claims fail for the same reasons discussed fully in his prior case: there is no private
right of action here. Additionally, the Magistrate Judge explained that res judicata or claim
preclusion bars Plaintiff’s federal claims against Defendant Mallory and that the Thirteenth
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Amendment simply does not apply to the facts that Plaintiff has pled. Finally, as the Magistrate
Judge explained, even construing Plaintiff’s pleading as asserting Title VII claims fails to
preclude dismissal; there is no basis to infer from the facts actually pled that Plaintiff was
terminated from his employment because of his gender or race. This Court agrees with all of the
Magistrate Judge’s reasoning. Plaintiff’s objection does nothing to puncture this analysis. The
objection adheres to inapplicable and erroneous legal theories.
The Court therefore OVERRULES Plaintiff’s objection (ECF No. 7), ADOPTS the
Order and Initial Screen Report and Recommendation (ECF No. 5), and DISMISSES this action
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk shall enter judgment accordingly and
terminate this case on the docket records of the United States District Court for the Southern
District of Ohio, Eastern Division.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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